. 


• 


419 


Before  the 

CENTRAL  AMERICAN 
COURT  OF  JUSTICE 


The  Republic  of  El  Salvador 

Against 

The  Republic  of  Nicaragua 


OPINION  AND  DECISION  OF  THE  COURT 


Translation 


WASHINGTON 

PRESS  OP  GIBSON  BROS.,  INC. 
1917 


GIFT  OF 


DOCUMENTS 
DEPT. 


.  vy 
oL^p. 


A 


BEFORE  THE 

Central  American  Court  of  Justice 


THE  REPUBLIC  OF  EL  SALVADOR 

v. 
THE  REPUBLIC  OF  NICARAGUA. 


OPINION  AND  DECISION   OF  THE  COURT.* 


San  Jost  de  Costa  Rica,  on  the  ninth  day  of  March,  nineteen 
hundred  and  seventeen,  at  four  o'clock,  p.  m. 


In  the  action  commenced  and  maintained  by  the  Gov- 
ernment of  the  Republic  of  El  Salvador  against  the  Gov- 
ernment of  the  Republic  of  Nicaragua,  arising  out  of  the 
conclusion  of  a  treaty  by  the  latter  with  the  Government 
of  the  United  States  of  North  America,  known  as  the 
Bryan-Chamorro  Treaty,  which  relates,  among  other  mat- 
ters, to  the  leasing  of  a  naval  base  in  the  Gulf  of  Fonseca, 
the  Court,  having  considered  the  proceedings  had  herein, 
hereby  renders  its  decision. 

The  Honorable  the  Charge  d' Affaires  of  El  Salvador  in 
this  Republic,  Dr.  Don  Gregorio  Martin,  intervened  herein 
on  behalf  of  the  Complainant  Government  and  Dr.  Don 
Alonso  Reyes  Guerra  appeared  on  its  behalf  as  attorney  of 
record ;  the  High  Party  Defendant  was  represented  by  Dr. 
Don  Manuel  Pasos  Arana. 

*Translated  by  Harry  W.  Van  Dyke, -Esquire,  of  the  Washington,  D.  C. 
bar. 


368735 


FIRST  PART. 


CHAPTER  I. 


It  appears: 

I.  That  on  the  2  8th  day  of  August,  1916,  in  accordance 
with  powers  to  that  end  duly  exhibited,  the  Honorable 
the  Charge  d'Affaires  of  El  Salvador,  Dr.  Don  Gregorio 
Martin,  appearing  in  the  name  of  his  Government, 
brought  before  this  Court  a  complaint  against  the  Republic 
of  Nicaragua  wherein  the  conclusion  of  the  Bryan-Cha- 
morro  Treaty  by  the  latter  Government  with  the  United 
States  of  North  America,  was  alleged.  In  support  of  the 
action,  the  complaint  sets  forth  the  arguments  of  fact  and 
law,  and  it  is  accompanied  by  the  evidence  considered 
pertinent  thereto  by  the  High  Party  Complainant. 

ARGUMENTS  OF  FACT  AND  LAW. 

Stated  concretely,  the  High  Party  Complainant  alleges 
as  follows : 

The  treaty  referred  to,  which  was  negotiated  by  the  then 
Secretary  of  State  of  the  United  States,  the  Honorable 
William  Jennings  Bryan,  and  the  then  Minister  of  Nica- 
ragua at  Washington,  General  Don  Emiliano  Chamorro, 
in  addition  to  granting  to  the  United  States  certain  rights 
for  the  construction  of  an  interoceanic  canal,  grants  to 
that  Republic,  for  the  term  of  ninety-nine  years  (renewable 
for  a  further  term  of  the  same  duration),  for  the  establish- 
ment of  a  naval  base,  a  part  of  the  Gulf  of  Fonseca.  The 
stipulations  of  that  pact  are  held  by  El  Salvador  to  be 


highly  prejudicial  to  her  supreme  interests,  in  that  they 
endanger  her  security  and  preservation,  violate  her  rights 
of  co-ownership  in  the  Gulf  of  Fonseca  and  strike  at  her 
legitimate  hopes  for  the  future  as  a  Central  American 
nation. 

II.  The  complaint  is  made  up  of  various  captions  in- 
tended to  develop,  from  different  points  of  view,  the  claims 
of  the  High  Party  Complainant. 

The  first  caption  is  devoted  to  a  discussion  of  the  follow- 
ing point:  ''The  Treaty  is  an  Official  Act  of  the  Govern- 
ment of  Nicaragua  that  Places  in  Danger  the  National 
Security  of  El  Salvador."  It  begins  with  this  paragraph: 

"  It  must  be  patent  to  every  one  that  the  establish- 
ment, by  a  powerful  State,  of  a  naval  base  in  the 
immediate  vicinity  of  the  Republic  of  El  Salvador 
would  constitute  a  serious  menace — not  merely  imag- 
inary, but  real  and  apparent — to  the  freedom  of  life 
and  the  autonomy  of  that  republic.  And  that  posi- 
tive menace  would  exist,  not  solely  by  reason  of  the 
influence  that  the  United  States,  as  an  essential  to 
the  adequate  development  of  the  ends  determined 
upon  for  the  efficiency  and  security  of  the  proposed 
naval  base,  would  naturally  need  to  exercise  and  enjoy 
at  all  times  in  connection  with  incidents  of  the  high- 
est importance  in  the  national  life  of  the  small  neigh- 
boring States,  but  would  be  also,  and  especially,  vital, 
because  in  the  future,  in  any  armed  conflict  that  might 
arise  between  the  United  States  and  one  or  more  mili- 
tary powers,  the  territories  bounded  by  the  Gulf  of 
Fonseca  would  be  converted,  to  an  extent  incalculable 
in  view  of  the  offensive  power  and  range  of  modern 
armaments,  into  belligerent  camps  wherein  would  be 
decided  the  fate  of  the  proposed  naval  establishment 
— a  decision  that  would  inevitably  involve  the  sacri- 
fice of  the  independence  and  sovereignty  of  the 
weaker  Central  American  States  as  has  been  the  case 
with  the  smaller  nations  in  the  present  European 
struggle  under  conditions  more  or  less  similar." 


At  the  outset,  for  the  purpose  of  showing  that,  in 
negotiating  that  treaty,  the  Government  of  Nicaragua  did 
not,  as  it  has  maintained,  confine  itself  to  its  own  exclusive 
territorial  jurisdiction,  but  infringed  thereby  upon  the 
rights  of  El  Salvador,  the  Agadir  case  was  invoked.  That 
case  involved  an  attempt  by  Germany,  in  1911,  to  seize 
the  port  of  Agadir  on  the  Moroccan  coast  for  the  estab- 
lishment of  a  naval  base,  which  attempt  occasioned 
protests  on  the  part  of  England  and  France,  who  claimed 
that  the  project  constituted  a  menace  to  their  national 
security  with  respect  to  their  colonies  in  South  Africa, 
and,  because  of  the  nearness  of  that  port,  a  menace  to  the 
route  followed  by  their  vessels  bound  for  East  India 
through  the  Strait  of  Gibraltar. 

Cited  also  is  the  Magdalena  Bay  case,  wherein  the 
United  States  of  North  America  made  positive  objection 
to  the  transfer  by  certain  United  States  citizens,  to  a 
Japanese  commercial  company,  of  land  along  the  shores 
of  that  bay  and  which  had  been  ceded  to  them  by  the 
Mexican  Government.  The  matter  resulted  in  the 
adoption,  by  the  United  States  Senate,  of  the  so-called 
Lodge  Resolution,  which  is  quoted  in  the  complaint  as 
follows : 

"That  when  any  harbor  or  other  place  in  the 
American  continent  is  so  situated  that  the  occupation 
thereof  for  naval  or  military  purposes  might  threaten 
the  communications  or  the  safety  of  the  United 
States,  the  Government  of  the  United  States  could 
not  see  without  grave  concern  the  possession  of  such 
harbor  or  other  place  by  any  corporation  or  associa- 
tion which  has  such  a  relation  to  another  Govern- 
ment not  American  as  to  give  that  Government 
practical  power  of  control  for  national  purposes." 

In  discussing  the  same  point,  the  complaint  quotes 
from  the  editorial  comment  on  the  Lodge  Resolution 
contained  in  the  American  Journal  of  International  Law, 
and  adds: 


"The  Lodge  Resolution  is  susceptible  of  being  mis- 
leading under  the  test  of  legal  opinion,  because  the 
principle  maintained  therein  does  not  refer  to  official 
acts  or  measures  of  government;  nevertheless,  it 
shows  how  far  in  the  opinion  of  the  North  American 
Senate,  a  nation,  even  though  powerful,  may  give 
way  to  its  fears  and  display  its  zeal  for  national 
security,  and  for  this  reason  the  Foreign  Office  cites 
the  Magdalena  Bay  case.  Furthermore,  the  Senate's 
resolution  puts  in  strong  relief  the  fact  that  the 
opinion  of  that  high  legislative  body  of  the  United 
States — the  nation  with  which  the  Bryan-Chamorro 
treaty  was  concluded — is  wholly  in  conformity  with 
El  Salvador's  contentions  against  that  treaty,  how- 
ever much  that  same  high  body,  in  its  amendments  to 
the  said  convention  adopted  at  the  time  of  its 
ratification,  showed  that  it  did  not  have  it  in  mind  to 
affect  any  existing  right  in  either  of  the  States  of 
Costa  Rica,  El  Salvador,  or  Honduras,  which,  how- 
every,  it  was  recognized,  had  protested  for  fear  o]  the 
contrary.  This  declaration  of  the  United  States 
Senate  is  in  no  way  consonant  with  the  spirit  of  the 
Lodge  Resolution  and  the  trend  of  opinion  which, 
but  a  few  years  before,  controlled  that  body  in  adopt- 
ing the  Lodge  Resolution. 

' '  Consequently  the  reasoning  on  which  the  Govern- 
ment of  Nicaragua  relies  in  support  of  the  legitimacy 
of  its  action  in  concluding  the  Bryan-Chamorro 
treaty,  when  it  says  that  it  contracted  'without 
injuring  in  the  slightest  degree  the  legitimate  rights 
and  interests  of  El  Salvador  or  those  of  any  other 
Central  American  republics,'  is  in  manifest  contra- 
diction of  the  positions  taken  by  other  nations,  for 
instance,  the  North  American  nation,  through  the 
medium  of  its  national  legislature;  and  it  stands  to 
reason  that  the  fears  entertained  by  the  Government 
of  El  Salvador  are  of  greater  moment  than  were  those 
of  England  and  France  in  the  Agadir  case,  and  are  of 
a  character  more  definite  and  real  than  the  fears  that 
agitated  the  United  States  in  the  Magdalena  Bay 
and  other  analogous  cases  contemplated  by  the  Lodge 
Resolution." 


III.  Caption  II  of  the  complaint  deals  with  the  follow- 
ing point;  "The  Bryan-Chamorro  Treaty  Ignores  and 
Violates  the  Rights  of  Co-ownership  Possessed  by  El 
Salvador  in  the  Gulf  of  Fonseca."  From  the  XVIth 
century — says  the  complaint — when  this  gulf  was  dis- 
covered by  the  Spaniards,  it  belonged  throughout  the 
entire  period  of  her  dominion  to  Spain,  the  mother 
country,  whose  rights  of  exclusive  ownership  were  never 
placed  in  doubt;  and,  on  the  emancipation  of  Central 
America,  that  ownership  passed  into  the  patrimony  of  the 
Federal  Republic  that  was  formed  by  the  five  States. 

The  complaint  goes  on  to  allege  the  exclusiveness  of  the 
Spanish  ownership  over  those  waters,  the  transfer  of  those 
rights  to  the  Central  American  States  constituting  the 
Federal  Government,  and  the  exclusive  ownership  subse- 
quently exercised  by  El  Salvador,  Honduras  and  Nicara- 
gua, the  geographic  situation  of  the  countries  surrounding 
the  gulf,  the  circumstance  that  the  use  of  those  waters  for 
fishing  and  other  analogous  purposes  has  never  been 
exercised  or  even  claimed  by  any  other  nations,  and,  denying 
the  pretensions  of  the  Nicaraguan  Government  that  the 
waters  of  the  Gulf  of  Fonseca  are  not  common  to  the  three 
States,  advances  the  following  argument: 

(a)  That  because,  for  a  long  period  of  years,  those 
waters  belonged  to  a  single  political  entity,  to  wit,  the 
Spanish  Colonial  Government  in  Central  America,  and, 
later,  to  the  Federal  Republic  of  the  Center  of  America, 
the  fact  conclusively  results  that,  on  the  dissolution  of  the 
federation  without  having  effected  a  delimitation  among 
the  three  riparian  States  of  their  sovereignty  therein,  the 
ownership  of  those  waters  continued  in  common  in  those 
three  States. 

(b)  That  it  matters  not  that  in  the  year  1900,  as  a  con- 
sequence of  the  convention  for  the  demarcation  of  boun- 
daries, the  Governments  of  Honduras  and  Nicaragua  fixed 


a  divisionary  line  between  the  two  countries  in  the  waters 
of  the  Gulf;  because  that  act  was  brought  about  without 
the  intervention  of  El  Salvador,  and  such  intervention  was 
essential  to  its  validity  and  practical  effect,  since  it  dealt 
with  property  that  was  common,  not  only  as  between 
Honduras  and  Nicaragua,  but  also  to  the  sovereign  State 
of  El  Salvador;  and  that  that  antecedent  did  not  affect  the 
root  of  the  question,  but,  on  the  contrary,  showed,  as  did  the 
attempt  that  was  made,  in  1884,  with  the  same  object  in 
view,  by  El  Salvador  and  Honduras — without  consumma- 
tion, however — that  the  idea  that  has  always  prevailed 
among  the  three  riparian  States  is  that  their  ownership 
over  the  waters  of  the  Gulf  of  Fonseca  is  an  undivided 
ownership. 

(c)  That  the  reasons  urged  against  the  theory  of  co- 
ownership  in  the  annual  report  of  the  Ministry  of  Foreign 
Relations  of  Nicaragua,  to  the  National  Congress  for  the 
year  1914,  are  unsound;  and  that  in  that  report  the  Minis- 
ter maintains  on  behalf  of  his  Government  the  following: 

"There  exists,  then,  no  community  between  Nica- 
ragua and  Honduras  in  the  Gulf  of  Fonseca,  and  El 
Salvador,  being  neither  a  neighbor  nor  a  co-boundary 
State  with  us — the  Republic  of  Honduras  lying  in 
between — the  community  claimed  with  Nicaragua 
and  alleged  in  the  Salvadorean  protest,  does  not  and 
cannot  exist. 

"  Furthermore,  the  status  of  common  ownership  in, 
and  the  indivisibleness  of,  the  waters  of  a  bay  are 
very  different  from  the  status  of  an  inheritance  or  an 
estate  in  lands,  for,  whereas,  with  respect  to  the  for- 
mer, there  exists  the  general  principle  that  the  parts 
adjacent  to  their  coasts  belong  to  the  several  nations 
—so  that,  on  the  laying  out  of  the  terrestrial  boundary 
line,  demarcation  of  the  maritime  waters  is  under- 
stood— there  is  no  similar  principle  with  respect  to 
landed  properties,  since  at  one  point  or  another  the 
coparceners  thereof  stand  to  receive  what  belongs  to 


8 

them  indifferently — though  even  then,  where  those 
landed  properties  are  contiguous,  the  civil  law  pro- 
vides that  the  portion  to  be  adjudicated  to  each  co- 
parcener shall  be  that  part  of  the  common  property 
which  is  contiguous  to  his  own  land. 

"One  nation  cannot  possess  the  right  to  a  greater 
portion  of  the  waters  of  a  bay  possessed  in  common 
with  others  than  that  shown  to  belong  to  it  by  the 
extension  of  its  respective  coasts;  and  the  Republic 
of  El  Salvador  being  situated  at  the  extreme  north- 
west of  the  Bay  of  Fonseca,  and  that  of  Nicaragua  in 
the  extreme  southeast,  the  two  being  separated  by 
Honduras,  the  maritime  ownership  enjoyed  by  the 
first-named  Republic  could  not  possibly  extend  one 
inch  farther  than  the  point  fixed  by  the  limit  of  its 
coasts  which  separates  it  from  Honduran  territory." 

That  in  opposition  to  this  argument,  the  complaint 
maintains  that  the  Gulf  of  Fonseca  belongs  to  the  category 
of  what  are  called  "Historic  Bays,"  such  as  the  Chesa- 
peake and  Delaware  Bays  on  the  coasts  of  the  Great 
Republic  of  the  North,  and  the  Bays  of  Conception,  Cha- 
leur  and  Miramiche  in  the  Dominion  of  Canada;  and  it 
adopts  wholly  the  doctrines  put  forth  by  the  Salvadorean 
Foreign  Office  in  its  protests  before  the  Department  of 
State  at  Washington,  which  were  directed  first  against  the 
Chamorro-Weitzell  Treaty,  and  later  against  the  Bryan- 
Chamorro  Treaty. 

(d)  That  the  circumstance  that  not  one  State  alone,  but 
three,  possess  the  shores  of  the  Gulf,  does  not  prevent 
the  application  to   the  Gulf   of  Fonseca  of  the  princi- 
ples underlying  Historic  Bays,  because  those  three  States, 
in  the  course  of  their  history,  have  not  always  been  inde- 
pendent each  of  the  others,  but  heretofore  formed  parts 
of  a  single  international  political  entity. 

(e)  That,  apart  from  its  character  as  a  Historic  Bay, 
the  Gulf  of  Fonseca  presents  the  particular  condition  that 
its  entrance,  between  the  summits  of  the  Islands  of  Mean- 


guera  and  Meanguerita  on  the  line  traced  from  Chiquirin 
Point,  on  the  mainland  of  El  Salvador,  to  Rosario  Point, 
in  the  northeast  region  of  the  peninsular  that  forms  the 
Nicaraguan  promontory  of  Cosigiiina,  is  not  of  an  extent 
greater  than  the  ten  miles  fixed  generally  by  the  publicists 
as  essential  to  considering  a  bay  as  "territorial"  or 
"closed,"  and  adds  the  following  consideration: 

"The  geographical  situation  of  the  Salvadorean 
Islands  in  the  Gulf  and  the  legal  fact  that  they  are 
separated  from  each  other  and  from  the  Island  nearest 
the  mainland,  and  the  latter  from  Chiquirin  Point, 
by  narrow  straits,  the  lower  depths  of  which  are  sown 
with  sand  banks  which  in  some  instances  prevent 
navigation  by  vessels  of  large  draft,  and,  in  others, 
permit  navigation  only  through  channels  of  narrow 
width  that  have  been  established  by  soundings,  are 
elements  sufficient,  under  international  law,  to  sus- 
tain conclusively  the  contention  that  the  chain  formed 
by  those  islands  constitutes  a  prolongation  of  the 
national  territory  into  the  Gulf;  so  that  the  Salva- 
dorean mainland  reaches  out  along  the  line  above 
indicated  as  far  as  Meanguerita  Island  and  in  that 
locality  narrows  the  entrance  to  the  Gulf,  in  the  direc- 
tion of  Rosario  Point  on  the  Nicaraguan  co^st,  to  a 
width  of  less  than  ten  miles,  counting  such  miles  at 
sixty  to  a  degree  of  latitude. 

' '  This  Foreign  Office  claims  that  that  width  is  less 
than  ten  miles  because  the  measurement  is  verified 
by  the  scale  on  the  best  known  maps  of  El  Salvador, 
Honduras  and  Nicaragua.  Those  maps  show  that  the 
width  of  the  Gulf's  mouth  proper  is  at  most  thirty- 
five  kilometers,  which,  at  one  kilometer  to  0.539 
(five  hundred  and  thirty-nine  thousandths)  of  a 
nautical  mile,  equalling  one-sixtieth  of  a  degree  of 
latitude,  are  equivalent  to  eighteen  miles  and  eight 
hundred  and  sixty-five  thousandths  (18.865)  °f  a 
mile  (Lloyd's  Calendar  for  1916,  page  213,  on 
' Nautical  Measures') ;  that  the  width  of  the  entrance 
between  Meanguerita  Island  and  Rosario  Point,  at  its 


10 

widest,  is  only  half  or  less  than  half  that  distance,  that 
is,  nine  miles  and  four  hundred  and  thirty-two 
thousandths  (9.432)  of  a  mile;  that  the  latter  width 
is  cut  by  the  sand  banks  (the  Farallones)  that  form  a 
prolongation  of  Nicaraguan  territory  and  in  reality 
reduce  that  entrance  to  a  much  smaller  number  of 
miles." 

(f)  And,  finally,  the  complaint  makes  an  exhaustive 
examination  of  the  doctrine  that  is  maintained  by  the 
scientific  authors  and  associations  and  which  upholds  the 
ownership  exercised  by  States  over  the  sea  and  bays, 
beginning  with  the  rule  laid  down  by  Bynkerschoek  whose 
general  maxim,  "imperium  terras  jeniri  ubi  finitur  armorum 
vis"  is  traced  through  its  historical  evolution. 

IV.  Caption  III  maintains  the  proposition  that  "The 
Treaty  Violates  Primordial  Interests  of  El  Salvador  as  a 
Central  American  State"  and  goes  on  to  say  that  in  the 
political  Constitution  of  El  Salvador  like  those  of  the  other 
Central  American  States,  the  principle  is  consecrated  that 
those  Republics  are  disintegrated  parts  of  the  Republic  of 
the  Center  of  America  and  that,  as  such,  the  power  remains 
inherent  in  each  to  concur  with  all  or  any  of  the  Central 
American  States  in  the  organization  of  a  Common 
National  Government;  that  the  Constitution  of  Nicara- 
gua, although  in  its  second  Article  it  provides  that  the 
public  capital  powers  may  not  enter  into  pacts  or  treaties 
that  are  opposed  to  the  independence  and  integrity  of  the 
Nation  or  which  in  any  way  affect  its  sovereignty,  excludes 
from  that  rule  pacts  or  treaties  that  "tend  toward  union 
with  one  or  more  of  the  Republics  of  Central  America." 
The  High  Party  Complainant  continues,  under  the 
caption  above  quoted : 

"Alienations  of  territory  by  a  Central  American 
State  to  a  foreign  nation  result,  therefore,  in  impairing 
the  transcendental  interests  that  the  Salvadorean 


II 

people  have  always  held,  and  still  hold,  constantly  in 
mind  as  one  of  their  greatest  and  most  legitimate 
aspirations :  that  of  the  reconstitution,  undiminished, 
with  the  brother  peoples,  of  the  great  country  that 
was  once  the  master  of  the  ancient  Central  American 
domain — an  aspiration  towards  which  the  five  States 
are  impelled  by  their  common  origin,  religion  and 
history.  Such  alienations  would  deeply  wound  that 
aspiration  and  detract  from  the  efficacy  of  the  great 
interests  that  the  Salvadorean  people,  as  a  fractional 
part  of  the  Central  American  people,  hold  to  be  of 
first  importance  to  their  national  life  in  the  future. 
The  Nicaraguan  people  and  the  peoples  of  the  other 
three  States  recognize,  maintain  and  value  those 
interests  in  the  same  measure.  This  is  shown  by  the 
multitude  of  historic  facts  and  political  acts  of  their 
independent  lives,  among  which  may  be  mentioned 
those  that  gave  rise  to  the  negotiation  of  the  con- 
ventions that  were  concluded  at  Washington  in  1907. 
One  of  those  conventions  was  the  pact  that  instituted 
the  Honorable  Tribunal  before  which,  through  the 
medium  of  the  Salvadorean  Government,  represented 
by  this  Foreign  Office,  one  of  those  peoples,  is  now 
appearing  in  quest  of  justice,  to  wit,  the  people  of 
El  Salvador." 

V.  Caption  IV  deals  with  the  proposition  that  "The 
Treaty  is  Contrary  to  Article  II  of  the  General  Convention 
of  Peace  and  Amity  Subscribed  by  the  Republics  of 
Central  America  at  Washington  on  the  Twentieth  of 
December,  1907."  In  that  chapter  the  Complainant 
argues  that  the  text  of  said  article  imposes  upon  the  States 
the  agreement  not  to  alter  in  any  form  their  constitutional 
order,  because  any  alteration  of  that  order  was  conceived 
by  the  delegates  to  the  treaty  convention  to  be  a  menace 
to  the  peace  and  security  of  each  of  the  States  they 
represented,  and  of  Central  America  in  general,  and  to  be 
contrary  to  their  established  policy  and  to  the  prestige 
with  which  they  ought  to  surround  themselves — this  for 


12 

the  purpose  of  warding  off,  for  the  future,  every  danger 
that  could  threaten  the  peace  of  Central  America;  that, 
with  those  ideas  in  mind,  they  could  not  be  oblivious  to  the 
greatest  danger  of  all,  which  was  the  possible  change  of  the 
constitutional  order,  by  which  must  be  understood,  not 
only  the  form  of  Government  adopted  by  the  fundamental 
law  of  each  State,  but  all  standards  adopted  by  the 
constituent  assemblies  whereby  the  Public  Powers  must 
model  their  acts  of  Government  in  matters  of  primordial 
interest ;  and  that  National  sovereignty,  independence  and 
integrity  are  matters  that  are  found,  in  this  sense,  ranged 
in  culminating  rank. 

VI.  Caption  V  maintains  the  following  proposition: 
"The  Treaty  Could  Not  Have  Been  Validly  Concluded," 
and,  in  support  thereof,  cited  Article  2  of  the  Political 
Constitution  in  force  in  the  Republic  of  Nicaragua,  which 
reads  as  follows: 

"Sovereignty  is  one,  inalienable  and  imprescrip- 
tible, and  resides  essentially  in  the  people,  from  whom 
the  functionaries  established  by  the  Constitution 
and  the  laws  derive  their  powers.  Consequently,  no 
pacts  or  treaties  may  be  entered  into  that  are  opposed 
to  the  independence  or  integrity  of  the  nation,  or  which 
in  any  way  affect  its  sovereignty,  save  only  those  that 
tend  toward  unity  with  one  or  more  of  the  Central 
American  Republics." 

The  chapter  continues  by  way  of  commentary: 

"The  text  of  this  article  constitutes  a  fundamental 
rule  of  government  which  previous  political  constitu- 
tions of  that  same  Republic  have  adopted  as  the  rule 
that  the  Nicaraguan  people  have  wished  to  see 
repected  by  the  Public  Power. 

"Openly  and  essentially  is  the  text  opposed  to  the 
stipulations  of  the  Bryan-Chamorro  Treaty,  wherein 
the  Government  of  Nicaragua  not  only  cedes  to  the 
United  States  a  zone  of  Nicaraguan  soil  for  the 


13 

construction  therethrough  of  an  interoceanic  canal, 
besides  the  Corn  Islands  in  the  Atlantic  and  a  portion 
of  territory  to  be  selected  by  the  North  American 
Government  on  the  littoral  of  the  Gulf  of  Fohseca, 
but,  conformably  with  the  amendments  to  Article  III 
of  the  Treaty,  made  by  the  United  States  Senate  in  its 
ratification  resolution,  restricts  its  sovereignty  in 
fiscal  and  financial  matters. 

"Those  stipulations,  therefore,  are  absolutely 
invalid,  and  for  that  reason  cannot  be  carried  out  in 
face  of  the  principles  of  international  justice  that 
control  cases  of  international  agreements  that  are 
fundamentally  null,  especially  when  the  nation  that 
has  contracted  with  another  whose  fundamental  laws 
are  opposed  to  the  subject-matter  of  the  agreement 
has  previous  and  full  knowledge  of  the  reasons  why  it 
is  invalid  and  when,  moreover,  such  agreements 
diminish  by  their  invalid  stipulations,  the  promordial 
rights  of  a  third  nation." 

VII.  In  Caption  VI  of  the  complaint  the  High  Party 
Complainant  confines  itself  to  showing:  "that  the  Govern- 
ment of  El  Salvador  sought  to  discuss  with  the  Nicaraguan 
Government  its  right  to  oppose  the  effective  consumma- 
tion of  the  Bryan-Chamorro  Treaty ;  that  to  that  end  the 
Salvadorean  Foreign  Office  addressed  to  the  Nicaraguan 
Foreign  Office  a  note  on  that  subject  which  was  placed  in 
the  hands  of  the  Minister  of  Foreign  Relations  of  Nicaragua 
by  special  Foreign  Office  couriers,  and  that,  as  the  note 
referred  to  has  not  even  been  acknowledged,  the  Govern- 
ment of  El  Salvador  is  forced  into  the  position  of  being 
unable  to  reach  a  settlement  with  the  Nicaraguan  Govern- 
ment and  of  being  justified  in  concluding  that  the  latter 
has  rejected  any  settlement  of  the  matter. 

In  an  additional  paper,  however,  presented  on  the  same 
date  with  the  complaint,  the  High  Party  Complainant  sets 
forth  that  after  the  signing  of  the  complaint  the  answer  of 
the  Nicaraguan  Foreign  Office  was  received,  and  that 


14 

therein,  having  recited  the  bases  on  which  the  Salvadorean 
Government  relies  in  its  opposition  to  the  Bryan-Chamorro 
Treaty,  and  having  set  forth,  in  its  turn,  the  bases  con- 
sidered by  the  Nicaraguan  Government  as  warranting  its 
insistence,  over  the  protests  of  El  Salvador,  on  fulfilling 
the  Treaty,  the  answer  concludes  as  follows : 

"In  conclusion,  Your  Excellency  must  permit  me 
to  observe  that,  in  consonance  with  the  solemn 
declaration,  contained  in  the  Note  itself,  that  the 
Government  of  El  Salvador  will  avail  itself  of  every 
means  afforded  it  by  justice,  law  and  existing  inter- 
national agreements  to  secure  the  invalidation  of  that 
pact,  my  Government,  in  its  turn,  expresses  to 
your  Excellency's  Government  its  unalterable  pur- 
pose to  avail  itself  also  of  all  means  afforded  to  it  by 
justice  and  law  to  maintain  inviolate  the  validity  of 
that  diplomatic  agreement." 

VIII.  The  complaint,  which  has  been  epitomized  in  the 
foregoing,  concludes  with  the  following  formal  petition  and 
prayers : 

' '  For  the  reasons  above  set  forth,  the  Salvadorean 
Foreign  Office,  in  the  name  of  and  representing  the 
Government  of  El  Salvador,  prays  that  the  Govern- 
ment of  Nicaragua  be  enjoined  to  abstain  from 
fulfilling  the  Bryan-Chamorro  Treaty,  subscribed  at 
Washington ,  the  fifth  day  of  August,  nineteen  hundred 
and  fourteen,  and,  therefore,  reiterating  its  expres- 
sions of  respect  and  consideration,  petitions  the 
Honorable,  the  Central  American  Court  of  Justice : 

"First. — That  the  complaint  hereby  interposed  be 
admitted  and  considered  together  with  the  Appen- 
dices hereto  attached. 

"Second. — That,  in  conformity  with  the  text  and 
spirit  of  Article  XVIII  of  the  Central  American 
Convention  concluded  at  Washington,  herein  last 
above  cited,  the  appropriate  decree  may  issue  fixing 
the  legal  situation  to  be  maintained  by  the  Govern- 
ment of  Nicaragua  in  the  matter  which  is  the  subject 


15 

of  this  complaint,  in  order  that  the  things  here  in 
litigation  may  be  preserved  in  the  status  in  which 
they  were  found  before  the  conclusion  and  ratification 
of  the  Bryan-Chamorro  Treaty. 

"  Third. — That,  by  the  final  decision,  the  Govern- 
ment of  Nicaragua  be  enjoined  to  abstain  from 
fulfilling  the  aforesaid  Bryan-Chamorro  Treaty,  and, 

"Fourth. — That  this  Honorable  Court  grant  such 
other  and  further  relief  as  may  seem  to  it  just  and 
proper." 

IX.  The  High  Party  Complainant  attaches  to  its  com- 
plaint the  documents  on  which  it  relies  for  support. 
Those  documents,  in  the  form  of  Appendices,  are  specified 
in  the  complaint  as  follows : 

A.  Copy  of  protest  presented  on  the  2  ist  of  October 

1913,  by  the  Salvadorean  Foreign  Office,  through  the 
medium   of   the   Legation   at   Washington,    to   the 
Department  of  State  of  the  United  States. 

B.  Reply  of  the  Hon.  W.  J.  Bryan,  Secretary  of 
State,  relating  to  that  protest. 

C.  Copy  of  the  Salvadorean  Legation's  rejoinder. 
Ch.  Copy  of  the  note  of  July  8,  1914,  addressed  by 

the  Salvadorean  Legation  on  the  same  subject  to 
the  Department  of  State. 

D.  Reply  of  the  Department  of  State,  dated  July 
16,  1914. 

E.  Copy  of  the  note  addressed  on  the  2ist  of  July, 

1914,  by  the  Salvadorean  Legation  to  the  Depart- 
ment of  State  referring  to  its  answer  of  the  i6th  of 
the  same  month. 

F.  Copy  of  the  Salvadorean  Legation's  note  of 
December    21,    1914,    to    the    Salvadorean    Foreign 
Office,    transmitting    the    Bryan-Chamorro    Treaty 
which  had  been  handed  to  it  by  the  Secretary  of 
State  of  the  United  States. 

G.  Note  of  the  Hon.   William  J.   Bryan  to  the 
Salvadorean  Legation  transmitting  copy  of  the  above- 
mentioned  Treaty. 

H.  The  Bryan-Chamorro  Treaty. 


i6 

I.  Note  of  protest  relating  to  said  Treaty,  addressed 
on  the  9th  of  February,  1916,  through  the  medium  of 
the  Salvadorean  Legation,  to  the  Department  of 
State. 

J.  Note  of  the  United  States  Legation,  dated  the 
1 9th  of  February,  1916,  wherein,  under  instructions 
from  the  Department  of  State,  the  Minister  informs 
the  Salvadorean  Foreign  Office  that  the  said  Bryan- 
Chamorro  Treaty  had  been  ratified,  with  amend- 
ments by  the  United  States  Senate. 

K.  Copy  of  the  Salvadorean  Foreign  Office's  reply, 
dated  March  3,  1916,  wherein  it  protests  against  the 
ratification  of  the  said  Treaty. 

L.  Copy  of  the  note  addressed  by  the  Salvadorean 
Foreign  Office  to  the  Nicaraguan  Foreign  Office 
on  the  1 4th  of  April,  1916,  and  delivered  by  Foreign 
Office  Couriers,  Captain  Jose  A.  Menendez  and 
Lieutenant  Santiago  Ch.  Jauregui. 

I/I.  Copy  of  the  telegrams  addressed  from  Managua 
to  the  Salvadorean  Foreign  Office  on  the  4th  of  May, 
1916,  by  His  Excellency  the  Minister  of  Foreign 
Relations  of  Nicaragua  and  by  the  Foreign  Office 
Courier,  Captain  J.  A.  Menendez. 

M.  Copy  of  certain  paragraphs  of  the  report  for  the 
year  1914  presented  to  the  National  Congress  of 
Nicaragua  by  His  Excellency  the  Minister  of  Foreign 
Relations  of  that  Republic. 

N.  Copy  of  certain  articles  of  the  Law  of  Naviga- 
tion and  Marine  in  force  in  El  Salvador. 

O.  Technical  report  of  Civil  Engineers,  Don 
Santiago  I.  Barbarena  and  Don  Jose  E.  Alcaine, 
relating  to  the  Gulf  of  Fonseca. 

P.  Map  of  the  Gulf  of  Fonseca. 

CHAPTER  II. 


Answer  to  the  Complaint  and  Proceedings  in  the  Case. 

It  Appears: 

That  the  Court,  by  resolution  adopted  on  the   sixth 
of  last  September  and  communicated  to  the  High  Parties 


and  to  the  other  Central  American  Governments,  ad- 
mitted the  complaint  herein,  basing  its  action  on  the 
consideration  that  the  signatory  nations  to  the  Con- 
ventions of  Washington,  in  entering  into  the  solemn 
agreement  to  submit  to  this  Court  all  controversies  or 
questions  that  might  arise  among  them,  whatever  might 
be  their  nature  and  origin,  established,  in  Article  I  of  the 
respective  convention,  the  jurisdiction  and  competency  of 
this  Court  in  such  controversies,  and  imposed  no  other 
limitation  than  the  requirement  to  seek  first  a  settlement 
between  the  respective  departments  of  foreign  affairs  of 
the  Governments  in  controversy ;  that  in  view  of  the  terms 
set  forth  in  the  answer  of  the  Department  of  Foreign 
Relations  of  Nicaragua  to  the  note  of  His  Excellency  the 
Minister  of  Foreign  Relations  of  El  Salvador,  the  Court  is 
of  the  opinion  that  such  previous  settlement  was  impos- 
sible, and  that,  therefore,  the  complaint  comes  properly 
under  the  jurisdictional  power  of  the  Court;  wherefore, 
the  Court  rendered  a  preliminary  decision  in  which  it  was 
ordered :  that  the  complaint  be  admitted,  that  the  evidence 
presented  therewith  be  made  a  part  of  the  record  in  the 
case,  that  the  complaint  be  communicated  to  the  Defend- 
ant Government  in  due  legal  form,  with  notice  to  present 
its  case  and  submit  its  evidence  within  the  period  of  sixty 
days,  and,  finally,  that,  pending  the  final  decision  herein, 
the  High  Parties  remain  in  the  same  legal  status  that 
subsisted  between  them,  prior  to  the  conclusion  of  the 
Bryan-Chamorro  treaty. 

That,  during  the  period  allowed  within  which  to  answer 
the  complaint,  the  High  Party  Complainant,  through  the 
medium  of  the  Charge  d'Affaires  of  El  Salvador  in  this 
Republic  (Costa  Rica),  and  pending  official  confirmation 
by  the  Court,  amplified  the  prayers  contained  in  its 
complaint,  by  supplemental  petitions  of  September  30, 
and  October  2,  1916,  in  which,  after  restating  its  first 


i8 

prayers,  the  following  points  were  added  to  its  complaint 
and  judgment  asked  thereon: 

A.  That  the  Bryan-Chamorro  treaty  violates  the 
rights  of  El  Salvador  in  the  Gulf  of  Fonseca ; 

B.  That  the  said  treaty  also  violates  the  rights 
resulting  to  El  Salvador  by  virtue  of  Article  IX  of  the 
General  Treaty  of  Peace  and  Amity,  concluded  at 
Washington  by  the  Central  American  Republics,  by 
reason  of  the  fact  that  no  express  and  special  reserva- 
tion of  those  rights  was  made  in  said  first-named 
pact; 

C.  That  the  Bryan-Chamorro  treaty  violates  the 
rights  of  El  Salvador  in  the  Gulf  of  Fonseca,  because 
the  grant  therein  to  the  United  States,  of  a  naval 
station  in  those  waters,  by  its  very  nature,  necessarily 
compromises  the  national  security  of   El  Salvador, 
and,  at  the  same  time,  nullifies  the  rights  of  co-owner- 
ship, possessed  by  El  Salvador  in  the  said  gulf;  and 
that,  without  the  intervention  and  consent  of  that 
country,  the  Government  of  Nicaragua  was  without 
power  legally  to  make  that  grant ; 

Ch.  That  the  aforesaid  grant  and  the  lease  of 
Great  'Corn  Island  and  Little  Corn  Island  to  be  held 
subject  to  the  laws  and  exclusive  sovereignty  of  the 
United  States,  are  acts  in  violation  of  Article  II  of  the 
General  Treaty  of  Peace  and  Amity  that  was  con- 
cluded by  the  plenipotentiaries  of  the  Central 
American  Republics  at  Washington ;  and 

D.  That  the  Government  of  Nicaragua  be  declared 
to  be  under  the  obligation  to  restore  and  maintain, 
in  all  respects  and  in  all  matters  heretofore  indicated, 
the  legal  status  that  existed  between  the  two  coun- 
tries prior  to  the  conclusion  of  the  Bryan-Chamorro 
treaty. 

//  Appears: 

That  the  Court,  by  resolution  adopted  on  the  2nd  day 
of  the  same  month  of  October,  admitted  the  petitions 
referred  to  as  integral  parts  of  the  complaint,  on  the 


19 

ground  that  because  the  Government  of  Nicaragua,  did  not 
answer  the  complaint  brought  herein  by  the  Govern- 
ment of  El  Salvador,  it  was  proper  to  admit  amplifications 
thereof  in  obedience  to  the  universal  rules  of  legal  pro- 
cedure; and  it  thereupon  ordered  that  a  new  period  of 
sixty  days  be  allowed  to  run,  within  which  to  answer  the 
complaint  and  its  amplifications ; 

That,  although  notified  of  the  above  action,  the  High 
Party  Defendant  did  not  avail  itself  of  the  period  granted ; 
whereupon,  in  conformity  with  Article  XV  of  the  respec- 
tive convention,  and  on  the  request  of  the  attorney  repre- 
senting the  High  Party  Complainant,  the  Court  issued  an 
order  requiring  the  Defendant  Government  to  present  its 
answer  within  a  further  period  of  twenty  days; 

That,  before  the  expiration  of  the  last-mentioned  period, 
the  Government  of  Nicaragua  made  its  appearance  in  the 
case  through  the  medium  of  its  attorney,  Dr.  Don  Manuel 
Pasos  Arana;  and,  having  been  notified  that  said  time 
limit  was  running  against  his  Government,  that  gentle- 
man, on  the  6th  of  February,  1917,  presented  for  the 
consideration  of  the  Court  a  waiver  of  the  time  limitation 
together  with  the  evidence  he  believed  to  be  pertinent. 

It  Appears: 

That  counsel  for  the  High  Party  Defendant,  before 
analyzing  the  arguments  on  which  the  Government  of 
El  Salvador  relied  in  support  of  its  complaint,  protested 
that  it  was  not  his  intention  to  answer  the  said  complaint 
in  its  entirety,  nor  to  acknowledge  in  any  manner  that  the 
Central  American  Court  of  Justice  had  acquired  jurisdic- 
tion to  decide  the  case ;  and  that,  thereupon,  under  special 
captions,  he  made  the  following  observations: 
(  The  Bryan-Chamorro  treaty  does  not  place  in  danger  the 
-  national  security  of  El  Salvador,  nor  does  the  establish- 
ment of  an  American  naval  base  in  the  Gulf  of  Fonseca 
constitute  a  serious  menace  to  its  free  and  autonomous  life, 


20 

because,  in  order  to  maintain  the  contrary,  it  would  be 
necessary  to  show  that  American  influence  in  the  republics 
of  this  continent,  or  even  in  the  Central  American 
republics,  was  initiated  or — commenced  to  reveal  itself— 
by  virtue  of  the  Bryan-Chamorro  treaty,  for  history  demon- 
strates that  that  influence,  already  long-existent  therein, 
has  not  proven  to  have  been  an  obstacle  to  the  enjoyment 
by  those  Republics  of  their  full  national  life;  there  are 
even  cases  in  which  that  influence  has  been  beneficient. 

Furthermore,  says  Nicaragua's  counsel,  the  security  and 
maintenance  of  the  naval  station  does  not  involve,  neces- 
sarily, the  operation  of  the  influence  of  the  States  bordering 
on  the  Gull.  That  security  and  maintenance  will  depend 
upon  other  causes,  such,  for  instance,  as  engineering  work, 
war  material  stored,  and  the  number  of  troops  that  may 
be  needed  to  guard  the  station.  "Force  protects  itself  by 
force." 

Such  naval  station  would  be,  moreover,  a  guarantee 
of  the  independence  of  the  Central  American  countries, 
since  that  independence,  from  the  time  of  the  break  with 
Spain,  has  been  guaranteed  by  the  United  States  Govern- 
ment under  the  Monroe  doctrine,  which  makes  it  the 
defender  and  guardian  of  the  continent ;  and  the  geographi- 
cal situation  of  the  Republic  of  Nicaragua,  the  possession 
of  the  Great  Lake  of  Nicaragua  and  the  rapid-strewn  river 
of  San  Juan,  which  latter  are  to  be  combined  for  the  con- 
struction of  an  interoceanic  way  of  communication,  place 
that  Republic  in  an  exceptional  and  different  position  from 
the  other  Republics  of  Central  America,  and  make  it  subject 
to  different  criteria. 

Counsel  goes  on  to  combat  the  argument  of  the  High 
Party  Complainant  that  the  case  of  the  naval  station  in 
the  Gulf  of  Fonseca  is  similar  to  the  Agadir  case,  which,  he 
points  out,  concerned  great  military  powers  involved  in 
important  rivalries  in  commerce  and  territorial  expansion, 


21 

whereas,  with  respect  to  the  United  States  and  the  small 
countries  adjacent  to  the  Gulf  of  Fonseca,  it  is  to  be  pre- 
sumed that  such  rivalries  and  friction  do  not  exist,  and  for 
many  centuries  will  not  exist. 

Similar  comment  is  made  in  reference  to  the  case  of 
Magdalena  Bay,  wherein,  says  counsel,  were  involved 
certain  subjects  of  Japan,  a  military  and  naval  power  of 
the  first  class,  that  might  have  established  in  that  bay  a 
naval  station  that  would  have  been  a  menace  to  the  com- 
munications and  security  of  the  United  States  or  any  other 
nation  on  this  continent. 

In  regard  to  the  argument  that  the  Bryan-Chamorro 
treaty  ignores  and  violates  the  rights  of  El  Salvador  in  the 
Gulf  of  Fonseca,  counsel  for  Nicaragua  refers  to  the  reply 
on  that  point  made  by  the  Nicaraguan  Foreign  Office  to  the 
note  addressed  by  the  Salvadorean  Foreign  Office  on  the 
subject  of  the  negotiation  of  the  Bryan-Chamorro  treaty; 
and  he  adds  certain  other  observations  as  follows : 

He  declares  that  the  Government  of  Nicaragua  under- 
stands perfectly  that  the  ancient  Spanish  Provinces  of 
Nicaragua,  Honduras  and  El  Salvador,  by  reason  of  the 
fact  that  they  are  adjacent,  are  owners  of  the  Gulf  in  the 
sense  that  to  each  belongs  a  part  thereof,  but  not  in  the 
sense  that,  thereby,  a  community  in  the  legal  acceptation 
of  the  word  exists  among  those  republics.  Demarcation 
of  frontiers  therein  is  lacking;  but  this,  he  says,  does  not 
result  in  common  ownership. 

Counsel  proceeds  to  argue  that  Nicaragua  is  not  co- 
riparian  with  El  Salvador  in  the  Gulf  of  Fonseca,  because 
the  indispensable  element  of  adjacency  is  absent.  The 
States  that  are  truly  co-riparian,  he  continues,  are  Nicara- 
gua with  Honduras  and  Honduras  with  El  Salvador, 
between  which  the  status  of  being  co-boundary  States  does 
exist. 


22 

In  support  of  his  argument,  counsel  invokes  the  bound- 
ary treaty  entered  into  by  the  Republics  of  Nicaragua  and 
Honduras  in  the  year  1900.  In  that  treaty  Nicaragua 
takes  the  attitude  of  being  in  full  exercise  of  her  sover- 
eignty, undisputed  by  any  neighbor,  over  the  portion  of 
the  waters  that  correspond  to  her  in  the  Gulf  of  Fonseca. 
So,  also,  he  invokes  the  attempt  made  by  El  Salvador,  in 
1884,  to  negotiate  a  boundary  convention  fixing  the 
maritime  boundary  between  El  Salvador  and  Honduras; 
and,  although  that  convention  was  not  carried  into  effect, 
because  of  the  failure  of  the  Honduran  Congress  to 
approve  it,  all  of  its  moral  force,  he  says,  detracts  from  El 
Salvador's  present  argument,  because,  for  the  conclusion 
of  that  treaty,  the  intervention  and  consent  of  Nicaragua 
was  not  asked — the  very  same  point  that  is  now  made  by 
El  Salvador,  in  her  own  favor,  with  respect  to  the  con- 
clusion of  the  Bryan-Chamorro  treaty. 

Those  declarations  are  reinforced  by  citing  the  protest 
of  the  Honduran  Government,  a  copy  of  which  is  before 
this  Court,  and  which  is  discussed  by  counsel  in  a  special 
section  of  his  brief. 

Counsel  for  the  Defendant  Government  understands, 
he  says,  that  the  lines  of  demarcation  in  the  Gulf  between 
Nicaragua  and  Honduras  are  actually  traced,  whereas 
those  between  El  Salvador  and  Honduras  are  not;  where- 
upon he  makes  the  following  statement  of  his  understand- 
ing on  this  point : 

"The  Government  of  Nicaragua  is  not  incon- 
venienced by  the  claim  that  the  Gulf  of  Fonseca  is  a 
bay  that  should  be  considered  as  being  under  the 
exclusive  ownership  of  the  three  adjacent  States 
thereto,  for  this  does  not  indicate  that  such  ownership 
by  the  three  States  constitutes  a  community : 
exclusive  ownership  over  the  Gulf,  and  nothing  more, 
belongs  to  the  Republics  of  Nicaragua,  Honduras  and 
El  Salvador  in  the  maritime  territorial  parts  that 
belong  to  them  as  owners  of  their  respective  coasts." 


23 

In  his  brief  counsel  makes  lengthy  legal  argument  as 
to  the  reasons  set  forth  in  the  complaint  in  favor  of  co- 
ownership;  but  a  resume  of  that  argument  by  the  High 
Party  Defendant  is  contained  in  the  following  paragraphs : 

"The  Government  of  Nicaragua  does  not  dispute, 
or  cast  doubt  upon,  the  perfectly  evident  fact  that  the 
Bay  of  Fonseca  is  a  closed  or  territorial  bay;  but  it 
does  deny  that  that  characteristic  attaches  to  it  by 
reason  of  the  fact  that  the  three  States  adjacent  to 
the  Gulf,  Nicaragua,  Honduras  and  El  Salvador, 
formerly  belonged  to  a  single  international  political 
entity,  for,  besides  the  fact  that  the  said  vStates 
preserved  their  autonomy,  independence  and  even 
sovereignty  whilst  in  the  federation,  the  true  reason 
underlying  that  characteristic  is  that  the  Gulf  of 
Fonseca  is  small  in  extent,  and,  therefore,  belongs  to 
the  nations  that  own  its  coasts. 

"The  Government  of  Nicaragua  understands  per- 
fectly that  imperium  may  be  exercised  by  the  States 
independently  of  ownership  and  absolute  jurisdiction 
over  the  sea,  this  in  order  that  its  economic  laws  may 
not  be  evaded  in  a  zone  as  great  as  four  leagues;  but 
maintains  that  that  right  may  only  be  exercised 
directly  opposite  along  and  coextensive  with  the  coast 
of  a  nation  over  the  high  seas  and  not  to  the  right  or 
left  over  portions  of  the  territorial  waters  of  other 
nations  adjacent  on  those  sides;  for  the  insurmount- 
able barrier  of  foreign  sovereignties  stands  in  the 
way." 

The  argument  that  the  Bryan-Chamorro  treaty  violates 
primordial  interests  of  El  Salvador  as  a  Central  American 
State,  is  denied  in  the  answer  to  the  complaint,  on  the 
following  grounds : 

That  El  Salvador,  like  Nicaragua,  Guatemala,  Honduras 
and  Costa  Rica,  is  a  free,  independent  and  sovereign 
State;  that  the  circumstance  that  those  States  were 
members  of  the  Federal  Republic  of  the  Center  of  America 
does  not  diminish  or  alter  the  rights  of  sovereignty  that 


24 

pertain  to  them  as  a  result  of  their  reorganization  as 
separate  States;  that  the  declarations  contained  in  the 
various  constitutions  that  now  control,  or  have  con- 
trolled, the  republics  of  Central  America,  with  regard  to 
the  reconstruction  of  the  old  Federation,  imply  no  more 
than  the  possibility  of  a  return  to  the  union — never  an 
irrevocable  obligation;  that  the  Bryan-Chamorro  treaty 
is  not  contrary  to  Article  II  of  the  General  Treaty  of 
Peace  and  Amity  concluded  at  Washington  on  the  2oth 
of  December,  1907,  because  it  is  not  true  that  the  five 
Central  American  States  agreed  not  to  alter  in  any  form 
their  constitutional  order;  that  what  they  did  agree  to 
was  to  do  nothing  that  would  operate  in  any  of  them  to  the 
prejudice  of  the  constitutional  order.  In  support  of  this 
argument,  various  observations  are  made  and  the  following 
conclusion  is  reached : 

"The  High  Party  Complainant  only  enunciates,  but 
does  not  prove,  the  strange  doctrine  that  the  expres- 
sion constitutional  order  must  apply  to  every  rule 
adopted  by  the  Constituent  Assemblies  whereon  the 
Public  Powers  might  model  their  act  in  matters  of 
primordial  interest." 

The  answer  then  proceeds  to  interpret  Article  II  of  the 
treaty  referred  to  in  the  following  manner : 

"The  dispositions  or  measures  that  are  prohibited 
by  the  article  cited  are  not  such  as  are  TAKEN  BY  THE 

SIGNATORY  GOVERNMENTS  WITH  RESPECT  TO  THEM- 
SELVES, but  are  direct  dispositions,  or  measures, 
which,  independently  of  one  of  the  signatory  Govern- 
ments, operate  to  alter  the  constitutional  order  in  ANY 
OF  THE  OTHER  REPUBLICS." 

It  maintains  that  the  nullity  of  the  Bryan-Chamorro 
treaty  can  not  be  properly  alleged,  because  the  exclusive 
power  to  do  so  resides  in  the  parties  who  negotiated  that 
pact,  or  those  who  possessed  the  right  to  join  therein ;  that 


25 

the  signatory  parties  to  the  treaty  are  Nicaragua  and  the 
United  States  of  America,  and  that  El  Salvador  did  not 
possess  the  right  to  intervene  in  its  negotiation,  since 
Nicaragua,  an  independent,  free  and  sovereign  republic, 
is  not  subordinated,  by  any  international  agreement,  either 
to  that  republic  or  to  any  other  on  earth. 

The  answer  goes  on  to  contest  the  bases  underlying  the 
additions  to  the  complaint  presented  in  the  documents  of 
September  30,  and  October  2,  last,  and  announces  that 
this  Court  may  not  take  cognizance  of  the  complaint 
interposed  by  the  Government  of  El  Salvador,  for  the 
reason  that  the  present  controversy  does  not  involve  a 
question  purely  Central  American,  but,  rather,  a  mixed 
question  that  depends  upon  the  rights  of  a  third  nation, 
which  did  not  previously  submit  to  the  authority  of  this 
Court  by  means  of  the  special  convention  provided  for  in 
Article  IV  of  the  organic  pact;  and  in  support  of  that 
argument,  the  answer  invokes  the  document  contained  in 
the  last  conducive  premise  (" consider&ncb")  of  the 
decision  rendered  by  this  Court  in  the  action  brought  by 
the  Government  of  Costa  Rica  against  that  of  Nicaragua 
arising  out  of  the  concession  by  the  latter  Government  to 
the  United  States  for  the  construction  of  an  interoceanic 
canal  by  way  of  the  San  Juan  River,  or  any  other  route 
through  Nicaraguan  territory. 

In  conclusion,  the  High  Party  Defendant,  through  its 
counsel,  makes  the  following  exceptions: 

First. — That  the  controversy  between  the  Foreign 
Offices,  on  the  subject,  was  not  exhausted,  because  "the 
Government  of  the  Republic  of  El  Salvador,  having 
chosen,  in  presenting  its  complaint,  to  ask  that  the  decision 
be  rendered  on  a  new  claim — a  claim  that  had  not  been 
discussed  between  the  respective  Foreign  Offices — it  is 
obvious  that  in  that  case  it  cannot  be  truly  stated  that  an 
agreement  could  not  be  reached";  and, 


26 

Second. — That  the  Court  is  incompetent,  for  lack  of 
jurisdiction,  to  take  cognizance  of,  and  decide,  the  com- 
plaint and  the  additions  thereto  presented  by  the  Govern- 
ment of  El  Salvador. 

The  evidence  adduced  by  the  High  Party  Defendant, 
and  attached  to  its  answer,  comprises : 

A.  Note  of  the  Nicaraguan  Foreign  Office  of  July 
26,  1916,  in  reply  to  the  note  addressed  to  it  by  the 
Salvadorean  Foreign  Office  relating  to  the  conclusion 
of  the  Bryan-Chamorro  treaty ; 

B.  A  royal   ctdula    (decree)    addressed   to   Diego 
Gutierrez  referring  to  territorial  boundaries  during 
the  colonial  period;  and, 

C.  Documents  relating  to  the  attempt  made  in 
1901  by  the  Governments  of  Nicaragua  and  the  United 
States  looking  to  the  alienation  of  the  canal  route 
across  Nicaraguan  territory. 

It  Appears:  that  the  Court,  by  resolution  of  February 
9th,  of  the  present  year,  held  that  the  time  limit  granted 
to  the  Nicaraguan  Government  within  which  to  answer  the 
complaint  and  the  additions  thereto  had  expired,  and 
declared  that  the  case  was  ready  for  hearing ;  it  then  fixed 
the  1 9th  of  February  as  the  day  on  which  the  final  argu- 
ments of  the  High  Parties  were  to  be  heard. 

It  Appears:  that,  at  the  public  hearing  called  as  above 
stated,  Dr.  Don  Alonso  Reyes  Guerra,  for  the  High  Party 
Complainant,  and  Dr.  Don  Manuel  Pasos  Arana,  for  the 
High  Party  Defendant,  appeared  and  argued  at  length 
their  respective  claims. 

It  Appears:  that,  at  the  session  held  by  this  Court  on 
the  first  and  second  days  of  the  present  month,  the 
questions  submitted  were  fully  discussed,  and  the  points 
contained  in  the  questionnaire  (statement  of  issues) 
heretofore  approved  were  voted  upon  in  the  manner  set 
forth  in  the  act  passed  at  that  session,  which  act  reads  as 
follows : 


27 

ACT  RECORDING  THE  VOTES  OF  THE  COURT  IN 
THE  CASE. 

THE  CENTRAL  AMERICAN  COURT  OF  JUSTICE,  San  Jose 
de  Costa  Rica,  at  5  o'clock  in  the  afternoon  of  the  2d  of 
March,  nineteen  hundred  and  seventeen. 

The  Court,  having  concluded  its  deliberations  prepara- 
tory to  a  final  decision  of  the  suit  brought  by  the  Govern- 
ment of  El  Salvador  against  the  Government  of  Nicaragua, 
proceeded  to  take  a  vote  on  each  of  the  twenty-four  points 
comprised  in  the  questionnaire  heretofore  approved,  with 
the  following  result : 

First  Question. — "Shall  the  Court  proceed  to  take 
cognizance  of  the  peremptory  exception  to  its  com- 
petency for  lack  of  jurisdiction  (submitted  by  the 
High  Party  Defendant  on  the  expiration  of  the 
time  limit  running  against  it),  insofar  as  that 
exception  relates  to  the  original  complaint,  not- 
withstanding the  Court  admitted  that  complaint  by 
act  of  September  6,  nineteen  hundred  and  sixteen?" 

Answered  in  the  affirmative  by  all  the  Judges. 

Second  Question. — "Is  the  Court  competent  to  take 
cognizance  of  the  case  on  the  issues  presented?" 

Answered  in  the  affirmative  by  all  of  the  Judges,  Judge 
Gutierrez  Navas  adding:  "insofar  as  relates  exclusively  to 
the  Republics  of  Nicaragua  and  El  Salvador." 

Third  Question. — "  In  view  of  the  fact  that  the  case 
involves  contractual  interests  of  a  third  nation 
that  is  not  a  party  thereto,  and  that  is  not  subject 
to  the  jurisdiction  of  the  Court,  has  this  Court  juris- 
diction to  render  a  decision  therein  with  reference  to 
the  rights  in  controversy  between  El  Salvador  and 
Nicaragua?" 

Answered  in  the  affirmative  by  all  the  Judges,  Judge 
Guiterrez  Navas  adding  the  same  proviso  that  appears  in 
the  answer  to  the  preceeding  question. 


28 

Fourth  Question. — "Do  the  additions  to  the  com- 
plaint, dated  the  3oth  of  September  and  2d  of  October, 
nineteen  hundred  and  sixteen,  contain  matter  extra- 
neous to  the  origin  of  the  diplomatic  controversy  that 
preceded  the  litigation?" 

Answered  in  the  negative  by  Judges  Medal,  Oreamuno, 
Castro  Ramirez  and  Bocanegra,  and  in  the  afirmative  by 
Judge  Gutierrez  Navas. 

Fifth  Question. — "Referring  to  the  answers  to  the 
preceding  question,  and  the  findings  in  the  acts  of  the 
Court  herein,  was  the  Salvadorean  Government 
under  the  obligation  previously  to  seek  a  diplomatic 
settlement  with  the  Government  of  Nicaragua  on  the 
concrete  points  set  forth  in  the  additions  to  the 
complaint?" 

Answered  in  the  negative  by  Judges  Medal,  Oreamuno, 
Castro  Ramirez  and  Bocanegra,  and  in  the  affirmative  by 
Judge  Gutierrez  Navas. 

Sixth  Question. — "Is  the  Court  competent  to  take 
cognizance  of  and  decide  the  prayers  contained  in  the 
additions  to  the  complaint  above  referred  to?" 

Answered  in  the  affirmative  by  Judges  Medal,  Orea- 
muno, Castro  Ramirez  and  Bocanegra,  and  in  the  negative 
by  Judge  Gutierrez  Navas. 

Seventh  Question. — "Is  the  Court  competent  to 
take  cognizance  of,  and  declare  the  law  with  respect 
to,  the  initial  petition  in  the  complaint?" 

Judges  Medal,  Oreamuno  and  Castro  Ramirez  answered 
in  the  affirmative,  on  the  ground  that  such  cognizance  is 
for  the  purpose  of  establishing  the  legal  relations  between 
the  High  Parties  Litigant;  Judge  Gutierrez  Navas 
answered  in  the  negative  on  the  ground  that  he  regarded 
it  as  legally  impossible  to  prohibit  the  fulfillment  of  a 
contract  without  affecting  the  rights  of  one  of  the  con- 
tracting parties  that  is  not  a  party  to  the  suit ;  and  Judge 
Bocanegra  answered  in  the  affirmative,  on  the  ground  that 


29 

such  cognizance  is  for  the  purpose  of  declaring  the  legal 
relations  that  exist  between  the  contending  Central 
American  States,  but  not  for  the  purpose  of  deciding  any- 
thing that  affects  third  parties  that  are  not  parties  to  the 
suit. 

Eighth  Question. — ''As  a  consequence,  should  the 
exceptions  proposed  by  the  High  Party  Defendant  be 
accepted  or  rejected? 

Judges  Medal,  Oreamuno  and  Castro  Ramirez  answered 
that  they  should  be  rejected;  Judge  Gutierrez  Navas 
answered  that  they  should  be  accepted;  and  Judge 
Bocanegra  answered  that  the  Court  should  accept  the 
exceptions  proposed  insofar  as  they  relate  to  the  concluding 
part  of  the  answer  made  by  him  to  the  Seventh  Question, 
and  that  the  rest  thereof  should  be  rejected. 

Ninth  Question. — "Taking  into  consideration  the 
geographic  and  historic  conditions,  as  well  as  the 
situation,  extent  and  configuration  of  the  Gulf  of 
Fonseca,  what  is  the  internatioal  legal  status  of  that 
Gulf?" 

The  Judges  answered  unanimously  that  it  is  an  historic 
bay  possessed  of  the  characteristics  of  a  closed  sea. 

Tenth  Question. — "As  to  which  of  those  characteris- 
tics are  the  High  Parties  Litigant  in  accord?" 
The  Judges  answered  unanimously  that  the  parties  are 
agreed  that  the  Gulf  is  a  closed  sea. 

Eleventh  Question. — "What  is  the  legal  status  of  the 
Gulf  of  Fonseca  in  the  light  of  the  foregoing  answer 
and  the  concurrence  of  the  High  Parties  Litigant,  as 
expressed  in  their  arguments,  with  respect  to  owner- 
ship and  the  incidents  derived  therefrom?" 

Judges  Medal,  Oreamuno,  Castro  Ramirez  and  Boca- 
negra answered  that  the  legal  status  of  the  Gulf  of  Fonseca, 
according  to  the  terms  of  the  question,  is  that  of  property 
belonging  to  the  three  countries  that  surround  it;  and 


30 

Judge  Gutierrez  Navas  answered  that  the  ownership  of 
the  Gulf  of  Fonseca  belongs,  respectively  to  the  three 
riparian  countries  in  proportion. 

Twelfth  Question. — "Are  the  High  Parties  Litigant 
in  accord  as  to  the  fact  that  the  waters  embraced  in 
the  inspection  zones  that  pertain  to  each,  respectively, 
are  intermingled  at  the  entrance  of  the  Gulf  of  Fon- 
seca?" 

The  Judges  answered  unanimously  that  the  High 
Parties  are  agreed  that  the  waters  which  form  the  entrance 
to  the  Gulf  intermingle. 

Thirteenth  Question. — "What  direction  should  the 
maritime  inspection  zone  follow  with  respect  to  the 
coasts  of  the  countries  that  surround  the  Gulf?" 

Judges  Medal,  Oreamuno,  Castro  Ramirez  and  Boca- 
negra  answered  that  the  zone  should  follow  the  contours 
of  the  respective  coasts,  as  well  within  as  outside  the 
Gulf;  and  Judge  Guiterrez  Navas  that,  with  respect  to 
the  Gulf  of  Fonseca,  the  radius  of  a  marine  league  zone 
of  territorial  sea  should  be  measured  from  a  line  drawn 
across  the  Bay  at  the  narrowest  part  of  the  entrance 
towards  the  high  seas,  and  the  zone  of  inspection  extends 
three  leagues  more  in  the  same  direction. 

Fourteenth  Question. — "Does  the  right  of  co- 
ownership  exist  between  the  Republics  of  El  Salvador 
and  Nicaragua  in  the  non-littoral  waters  of  the  Gulf, 
and  in  those  waters  also,  that  are  intermingled 
because  of  the  existence  of  the  respective  zones  of 
inspection  in  which  those  Republics  exercise  police 
power  and  the  rights  of  national  security  and  defence  ?' ' 

Judges  Medal,  Oreamuno,  Castro  Ramirez  and  Boca- 
negra  answered  that  such  right  of  co-ownership  does 
exist,  without  prejudice,  however,  to  the  rights  that 
belong  to  Honduras  in  those  non-littoral  waters;  Judge 
Gutierrez  Navas  answered  in  the  negative. 


Fifteenth  Question.—  "Wherefore,  as  a  consequence, 
and  conformably  with  their  internal  laws  and  with 
international  law,  should  there  be  excepted  from  the 
community  of  interest  or  co-ownership  the  league  of 
maritime  littoral  that  belongs  to  each  of  the  States 
that  surround  the  Gulf  of  Fonseca  adjacent  to  the 
coasts  of  their  mainlands  and  islands  respectively, 
and  in  which  they  have  exercised,  and  may  exercise, 
their  exclusive  sovereignty? 

Answered  in  the  affirmative  by  Judges  Medal,  Orea- 
muno  and  Castro  Ramirez;  and  in  the  negative  by  Judge 
Gutierrez  Navas,  on  the  ground  that  in  the  interior  of 
closed  gulfs  or  bays  there  is  no  littoral  zone;  Judge 
Bocanegra  answered  in  the  affirmative  on  the  ground 
that  the  High  Parties  Litigant,  having  accepted  the  Gulf 
of  Fonseca  as  a  closed  bay,  the  existence  of  the  marine 
league  of  exclusive  ownership  becomes  necessary,  since  the 
Gulf  belongs  to  three  nations  instead  of  one. 

Sixteenth  Question.— "Did  the  Government  of 
Nicaragua,  in  granting  the  concessions  contained  in 
the  Bryan-Chamorro  treaty  for  the  establishment  of 
a  naval  base,  violate  the  right  of  co-ownership 
possessed  by  El  Salvador  in  the  Gulf  of  Fonseca?" 

Answered  in  the  affirmative  by  Judges  Medal,  Orea- 
muno,  Castro  Ramirez  and  Bocanegra,  and  in  the  negative 
by  Judge  Gutierrez  Navas. 

Seventeenth  Question.—  •"  Does  the  establishment, 
in  the  Gulf  of  Fonseca,  of  a  naval  base,  by  reason  of 
its  nature  and  transcendental  importance,  compro- 
mise the  security  of  El  Salvador?" 

Answered  in  the  affirmative  by  Judges  Medal,  Orea- 
muno  and  Castro  Ramirez,  and  in  the  negative  by  Judge 
Gutierrez  Navas.  Judge  Bocanegra  answered  in  the 
affirmative,  on  the  ground  of  the  possible  risk  of  aggression 
against  the  naval  base  on  the  part  of  other  powers  with 
which  the  concessionary  power  might  in  the  future  be  at 
war. 


32 

Eighteenth  Question. — "Are  the  concessions  for  a 
naval  base  in  the  Gulf  of  Fonseca  and  the  lease  of 
Great  Corn  Island  and  Little  Corn  Island,  that  were 
granted  by  Nicaragua,  and  that  placed  certain  waters 
and  territory  of  Nicaragua  under  the  laws  and 
sovereignty  of  a  foreign  nation,  acts  that  violate 
Article  II  of  the  General  Treaty  of  Peace  and  Amity 
concluded  at  Washington  by  the  Central  American 
Republics?" 

Answered  in  the  affirmative  by  Judges  Medal,  Orea- 
muno  and  Castro  Ramirez,  and  in  the  negative  by  Judge 
Gutierrez  Navas.  Judge  Bocanegra  answered  in  the 
affirmative,  but  on  the  ground  that  the  change  here  con- 
templated affects  not  only  the  State  wherein  it  operates, 
but  also  the^other  countries  signatory  to  the  treaty  referred 
to  in  the  question. 

Nineteenth  Question. — "Can  it  be  legally  declared 
that  the  Bryan-Chamorro  treaty  violates  primordial 
interests  of  El  Salvador  as  a  Central  American 
State?" 

Judges  Medal,  Oreamuno  and  Castro  Ramirez  answered 
in  the  affirmative,  insofar  as  relates  to  the  aspirations  con- 
secrated by  their  respective  political  constitutions  and  the 
purview  of  Central  American  public  law  regarding  the 
reconstruction  of  the  old  Federal  Republic  of  the  Center  of 
America.  Judge  Gutierrez  Navas  answered  in  the 
negative.  Judge  Bocanegra  answered  that  such  declara- 
tion may  not  properly  be  made,  because  it  refers  to  inter- 
ests pertaining  to  the  future  and  possessed  of  a  moral  and 
political  character,  the  judicial  determination  of  which  is 
impossible  on  the  part  of  the  Court  at  this  time. 

Twentieth  Question. — "Was  the  intervention  and 
consent  of  the  Republic  of  El  Salvador  necessary  to 
the  Government  of  Nicaragua  in  order  that  the  latter 
might  validly  grant  the  concession  for  a  naval  base  in 
the  Gulf  of  Fonseca?" 


33 

Judges  Medal,  Oreamuno  and  Castro  Ramirez 
answered  that  the  intervention  and  consent  of  the  Govern- 
ment of  El  Salvador  were  necessary  to  the  Government  of 
Nicaragua  for  the  concession  of  a  naval  base;  Judge 
Gutierrez  Navas  answered  in  the  negative;  and  Judge 
Bocanegra  answered  that,  in  view  of  the  fact  that  the 
question  of  nullity  is  not  involved  in  this  action,  the  word 
"  validly  "  should  be  eliminated  from  the  question  and  that, 
therefore,  he  eliminates  the  word  from  his  answer,  which  is 
affirmative. 

Twenty-first  Question. — "Has  the  Government  of 
Nicaragua,  by  its  conclusion  of  the  Bryan-Chamorro 
treaty,  violated  rights  that  belong  to  El  Salvador 
by  virtue  of  Article  IX  of  the  General  Treaty  of 
Peace  and  Amity  above  mentioned?" 

Judges  Medal,  Oreamuno,  Castro  Ramirez  and  Boca- 
negra answered  in  the  affirmative,  and  Judge  Gutierrez 
Navas  in  the  negative. 

Twenty-second  Question. — "Is  the  Defendant  Gov- 
ernment under  the  obligation,  in  conformity  with  the 
principles  of  international  law,  to  reestablish  and 
maintain  the  legal  status  that  existed  between  El  Sal- 
vador and  Nicaragua  prior  to  the  conclusion  of  the 
Bryan-Chamorro  treaty  respecting  matters  here  at 
issue?" 

Judges  Medal,  Oreamuno  and  Castro  Ramirez  answered 
that  in  conformity  with  measures  possible  under  that  law, 
that  Government  is  so  obligated.  Judge  Gutierrez  Navas 
answered  in  the  negative,  on  the  ground  that  there  has 
been  no  change  in  the  legal  status;  and  Judge  Bocanegra 
answered  that  in  his  opinion  the  Nicaraguan  Government 
is  under  the  obligation  to  make  such  reparation  as  may 
be  possible  in  conformity  with  the  principles  of  inter- 
national law. 


34 

Twenty-third  Question. — "Can  the  Court  enjoin 
the  Government  of  Nicaragua  to  abstain  from  fulfilling 
the  Bryan-Chamorro  treaty,  as  prayed  by  the  High 
Party  Complainant?" 

Judges  Medal,  Oreamuno  and  Casto  Ramirez  answered 
in  the  negative,  on  the  ground  that  one  of  the  High  Parties 
signatory  to  the  Bryan-Chamorro  treaty  is  not  subject  to 
the  jurisdiction  of  the  Court ;  Judges  Gutierrez  Navas  and 
Bocanegra  answered  in  the  negative. 

Twenty-fourth  Question.— "Will  the  Court  grant 
such  other  and  further  relief  in  this  case  as  is  asked 
for  in  the  fourth  prayer  of  the  main  complaint?" 

Judges  Medal,  Oreamuno,  Castro  Ramirez  and  Boca- 
negra answered  in  the  negative,  on  the  ground  that  no 
such  further  relief  has  been  expressly  prayed  for  and 
argued  in  the  case.  Judge  Gutierrez  Navas  answered  in 
the  negative. 

WHEREFORE  the  Court  declares : 

First. — That  it  is  competent  to  take  cognizance  of  and 
decide  the  present  case  brought  by  the  Government  of  the 
Republic  of  El  Salvador  against  the  Government  of  the 
I  Republic  of  Nicaragua. 

Second. — That  the  exceptions  interposed  by  the  High 
Party  Defendant  must  be  denied. 

Third. — That  the  Bryan-Chamorro  treaty  of  August 
fifth,  nineteen  hundred  and  fourteen,  involving  the  con- 
cession of  a  naval  base  in  the  Gulf  of  Fonseca,  constitutes 
a  menace  to  the  national  security  of  El  Salvador  and 
violates  her  rights  of  co-ownership  in  the  waters  of  said 
Gulf  in  the  manner,  and  within  the  limitations,  specified 
in  the  foregoing  act  recording  the  votes  of  the  Court. 

Fourth. — That  said  treaty  violates  Articles  II  and  IX  of 
pie  Treaty  of  Peace  and  Amity  concluded  at  Washington 
/by  the  Central  American  States  on  the  twentieth  of 
December,  nineteen  hundred  and  seven. 


35 

Fifth. — That  the  Government  of  Nicaragua,  by  availing 
itself  of  measures  possible  under  the  authority  of  inter- 
national law,  is  under  the  obligation  to  reestablish  and 
maintain  the  legal  status  that  existed  prior  to  the  Bryan- 
Chamorro  treaty  between  the  litigant  republics  insofar  as 
relates  to  matters  considered  in  this  action. 

Sixth. — That  the  Court  refrains  from  making  any  pro- 
nouncement with  respect  to  the  third  prayer  of  the  original 
complaint. 

Seventh. — That,  with  respect  to  the  fourth  prayer  of  the 
original  complaint,  the  Court  takes  no  action. 

ANGEI/M.  BOCANEGRA, 
DANIEL  GUTIERREZ  N.  (NAVAS), 
MANUEL  CASTRO  RAMIREZ, 
NICOLAS  OREAMUNO, 
SATURNINO  MEDAL, 
MANUEL  EcnEvERRfA, 

Secretary. 

It  Appears  in  Conclusion:  that,  during  the  course  of  the 
present  action,  the  Department  of  Foreign  Relations  of 
the  Republic  of  Honduras  brought  to  the  attention  of  this 
Court  a  copy  of  a  communication  it  had  addressed,  by 
way  of  protest  and  for  the  safeguarding  of  its  rights,  on 
the  thirtieth  of  September  of  last  year,  to  the  Ministry  of 
Foreign  Relations  of  the  Republic  of  El  Salvador,  against 
the  text  of  the  Salvadorean  complaint  that  alleges  co- 
ownership  in  the  Gulf  of  Fonseca;  which  communication 
went  on  to  declare  that  the  Government  of  Honduras  has 
not  recognized  the  status  of  co-ownership  with  El  Salvador, 
nor  with  any  other  republic,  in  the  waters  belonging  to  it 
in  the  Gulf  of  Fonseca.  That  communication  was,  by 
resolution  of  the  Court,  transcribed  and  sent  to  the  High 
Parties  Litigant,  and  in  due  course  replies  were  received, 
from  their  respective  Foreign  Offices. 


36 
SECOND  PART. 


Examination  of  Facts  and  Law 


CHAPTER  I. 

Concerning  the  Peremptory  Exception  as  to  the  Compe- 
tency of  the  Court. 

Whereas:  The  High  Party  Defendant  bases  its  exception 
to  the  competency  of  the  Court  because  of  lack  of  jurisdic- 
tion on  two  grounds  of  very  distinct  import,  to  wit,  first: 
"The  Government  of  El  Salvador,  in  preparing  its  com- 
plaint, chose  to  ask  for  a  decision  on  a  new  claim  that  had 
not  been  argued  between  the  respective  foreign  offices,  and 
thus  cannot  correctly  say,  in  regard  thereto,  that  a 
settlement  could  not  be  reached;  wherefore,  diplomatic 
channels  not  having  been  exhausted  in  an  effort  towards 
settlement  thereof,  the  complaint  cannot  properly  be 
admitted;"  and,  second:  The  Court  is  without  jurisdiction 
to  decide  mixed  controversies  or  questions  such  as  those 
with  which  Central  American  nations  may  concern  them- 
selves in  connection  with  interests  of  a  power  foreign  to 
Central  America. 

Article  I  of  the  convention  that  created  the  Court  con- 
fers on  it  the  amplest  jurisdiction  over  those  controversies 
that  may  arise  between  Central  American  Governments, 
wherein  "the  respective  Departments  of  Foreign  Affairs 
may  not  be  able  to  reach  an  understanding."  And  it 
appears  from  the  documents  filed  in  the  case  by  both  High 
Parties,  that  the  Governments  of  El  Salvador  and 
Nicaragua  not  only  had  recourse  to  argument  between 
their  respective  foreign  offices,  but  exhausted  that  means 
of  settlement  by  their  notes  of  April  14,  and  July  26,  1916, 
wherein  the  two  Governments  contemplated  the  conclusion 


37 

of  the  Bryan-Chamorro  treaty  in  all  its  many  aspects, 
both  legal  and  moral,  and  the  Government  of  Nicaragua 
reached  the  following  conclusion,  which  is  incompatible 
with  any  idea  of  amicable  settlement : 

"  In  conclusion,  Your  Excellency  must  permit  me  to 
observe  that,  in  consonance  with  the  solemn  declara- 
tion contained  in  the  note  itself  that  the  Government 
of  El  Salvador  will  avail  itself  of  every  means  afforded 
to  it  by  justice,  law  and  existing  international  agree- 
ments to  secure  invalidation  of  that  pact,  my  Govern- 
ment, in  its  turn,  expresses  to  Your  Excellency's 
Government  its  unalterable  purpose  also  to  avail 
itself  of  all  means  afforded  to  it  by  justice  and  law  to 
maintain  inviolate  the  validity  of  that  diplomatic 
agreement." 

The  argument  that  the  efforts  towards  settlement  were 
made  solely  in  connection  with  the  additions  to  the  com- 
plaint is  futile,  for  those  additions  do  not  involve  a  new 
dispute  or  controversy;  they  constitute  perfectly  germane 
amplifications  of  the  Salvadorean  claims  that  were  fully 
set  forth,  in  the  note  of  the  Foreign  Office  of  that  country, 
not  only  without  reservation  as  to  concrete  points  or 
subject-matter,  but  as  an  appeal  to  the  cordial  friendship 
of  the  Nicaraguan  Government  for  the  purpose  of  dissuad- 
ing it  from  consummating  the  Bryan-Chamorro  treaty— 
which,  the  note  pleads,  "will  seriously  injure  the  primor- 
dial interests,  not  alone  of  this  Republic,  but  of  all 
Central  America."  And  it  is  clear  that  since,  through 
diplomatic  channels,  efforts  were  resorted  to  that  were 
directed  against  the  entire  legal  structure  of  the  Bryan- 
Chamorro  treaty,  the  Complainant  Government  was 
justified  in  confining  the  petition  contained  in  its  com- 
plaint to  such,  or  any  of  the  matters  in  controversy,  and 
this,  without  prejudice  to  its  right — universally  conceded 
to  every  plaintiff,  by  the  laws  of  procedure — to  amplify 
its  prayers  before  the  answer  to  the  complaint  brings  about 


38 

the  quasi-contractual  status  of  Us  pendens;  provided,  of 
course,  that  such  additional  prayers  relate,  as  is  the  case 
here,  to  matters  concomitant  with  the  injuries  of  which 
complaint  is  made  by  the  High  Party  Complainant. 

Whereas:  What  may  be  called  the  fundamental  argu- 
ment: that  the  Court  has  no  jurisdiction  over  the  subject- 
matter  of  this  suit  because  it  involves  interests  of  a  third 
nation  that  is  not  subject  to  the  authority  of  the  Court,  is 
also  unsound  in  the  opinion  of  the  Judges.  The  jurisdic- 
tion of  the  Court  is  general  as  to  all  questions  or  differences 
that  arise  between  two  or  more  Central  American  Govern- 
ments, "whatever  may  be  their  nature  and  whatever  their 
origin."  This  is  the  language  of  Article  I  of  the  Conven- 
tion, the  natural  interpretation  whereof  excludes  every 
exception  incompatible  with  an  agreement  for  a  judicial 
arbitration  that  is  entered  into  without  reservation,  as  is 
the  case  with  the  arbitration  here  entrusted  to  the 
Central  American  Court  of  Justice. 

The  circumstance  that  the  Republic  of  the  United  States 
of  North  America  has  interests  connected  with  the 
Republic  of  Nicaragua  does  not  justify  the  latter  in 
evading  its  obligation  to  submit  herself  to  the  jurisdiction 
of  the  Court,  which  is  here  called  upon  to  adjust  the  legal 
situation  between  two  countries  signatory  to  the  Treaties 
of  Washington,  even  though  its  jurisdictional  power  does 
not  extend  to  a  third  nation  the  interests  of  which  have 
not  been  controverted,  and  could  not  be  controverted, 
without  special  agreement  on  her  part. 

The  absolute  competency  of  the  Court  is  guaranteed  by 
the  fact  that  the  Bryan-Chamorro  treaty  relates  imme- 
diately to  the  legal  order  created  in  Central  America,  and 
contracts  exclusively  respecting  property  located  in  Central 
America  over  which  it  is  natural  that  this  international 
court  of  justice  should  be  the  only  authority  called  upon 
to  settle  controversies  between  two  or  more  States  arising 
out  of  an  action  that  may  be  called  real. 


39 

In  carrying  out  its  mission,  it  is  enough  that  the  Court 
shall  confine  itself  within  the  scope  of  its  peculiar  power 
and  render  a  decision  embracing  solely  the  rights  in 
litigation  between  El  Salvador  and  Nicaragua;  for, 
by  accepting  the  argument  of  the  High  Party  Defendant, 
many  questions  that  might  arise  among  or  between  Central 
American  Governments  would  be  excluded  from  its 
cognizance  and  decision  if  weight  be  given  to  the  trivial 
argument  that  a  third  nation  foreign  to  the  institutional 
system  created  by  the  Treaties  of  Washington  possesses 
interests  connected  with  the  matters  or  questions  in 
controversy. 

To  admit  that  argument  would  be  to  render  almost 
negligible  the  judicial  power  of  the  Court,  since  the  fact 
of  invoking  interests  connected  with  a  third  nation  would 
detract  from  the  Court's  judicial  mission,  which,  according 
to  the  treaty,  is  indispensable  to  the  object  of  "effica- 
ciously guaranteeing  the  rights  of  the  Signatory  Parties 
and  maintaining  inalterably  peace  and  harmony  in  their 
relations  without  being  obliged  to  resort  in  any  case  to  the 
employment  of-  force."  Questions  of  transcendental 
importance,  having  their  origin  in  treaties  entered  into  by 
a  Central  American  Government  with  a  Foreign  Govern- 
ment would  be  excluded  from  the  cognizance  of  the  Court 
even  though  something  might  be  stipulated  therein  that  in 
concrete  form  might  menace,  violate,  or  imply  violation  of, 
the  fundamental  rights  of  the  States  or  of  the  treaty  rights 
that  reciprocally  have  been  conceded  by  the  nations  of  the 
Central  American  Isthmus.  That  restriction,  according 
to  the  unanimous  consensus  of  the  Judges'  opinions, 
cannot  be  accepted  by  the  Court  because  it  would  violate 
the  letter  and  spirit  of  the  treaty  creating  this  Court  and 
would  constitute  a  germ  of  conflicts  that  might  perhaps 
engender  consequences  that  would  be  painful. 


40 

On  the  other  hand,  Article  XXII  of  the  Convention 
confers  on  the  Court  the  power  to  determine  its  compe- 
tency by  interpreting  treaties  and  conventions  pertinent 
to  the  matter  in  dispute  and  by  applying  the  principles  of 
international  law — a  high  prerogative  which,  to  the  end 
that  once  the  potestas  judicandi  is  decreed,  the  obligatory 
character  of  its  decision  may  not  be  denied,  removes  from 
the  field  of  free  arbitrament  among  the  signatory  nations 
the  right  to  decide  as  to  the  competency  of  the  Court. 

By  virtue  of  the  foregoing  considerations,  the  Court 
hereby  declares  its  competency  to  take  cognizance  of  and 
decide  the  action  brought  by  the  Government  of  El 
Salvador  which  falls  within  the  letter  and  spirit  of  Article  I 
of  the  Convention  referred  to:  providing  for  full  judicial 
arbitration,  without  restriction  as  to  justiciable  subject- 
matter. 

CHAPTER  II. 
Analysis  of  the  Action. 

The  Legal  Status  of  the  Gulf  of  Fonseca. 

Whereas:  In  order  to  fix  the  international  legal  status 
of  the  Gulf  of  Fonseca  it  is  necessary  to  specify  the 
characteristics  proper  thereto  from  the  threefold  point  of 
view  of  history,  geography  and  the  vital  interests  of  the 
surrounding  States. 

The  historic  origin  of  the  right  of  exclusive  ownership 
that  has  been  exercised  over  the  waters  of  the  Gulf  during 
the  course  of  nearly  four  hundred  years  is  incontrovertible, 
first,  under  the  Spanish  dominion — from  1522,  when  it 
was  discovered  and  incorporated  into  the  royal  patrimony 
of  the  Crown  of  Castile,  down  to  the  year  1821 — then 
under  the  Federal  Republic  of  the  Center  of  America, 
which  in  that  year  attained  its  independence  and  sover- 
eignty, down  to  1839;  and,  subsequently,  on  the  dissolu- 


tion  of  the  Federation  in  that  year,  the  States  of  El 
Salvador,  Honduras  and  Nicaragua,  in  their  character  of 
autonomous  nations  and  legitimate  successors  of  Spain, 
incorporated  into  their  respective  territories,  as  a  neces- 
sary dependency  thereof  for  geographical  reasons  and 
purposes  of  common  defence,  both  the  Gulf  and  its 
Archipelago,  which  Nature  had  indented  in  that  important 
part  of  the  continent,  in  the  form  of  a  gullet. 

During  these  three  periods  of  the  political  history  of 
Central  America,  the  representative  authorities  have 
notoriously  affirmed  their  peaceful  ownership  and  posses- 
sion in  the  Gulf ;  that  is,  without  protest  or  contradiction 
by  any  nation  whatsoever,  and  for  its  political  organiza- 
tion and  for  police  purposes,  have  performed  acts  and 
enacted  laws  having  to  do  with  the  national  security,  the 
observance  of  health  and  with  fiscal  regulations .  A  secular 
possession  such  as  that  of  the  Gulf,  could  only  have  been 
maintained  by  the  acquiescence  of  the  family  of  nations; 
and  in  the  case  here  at  issue  it  is  not  that  the  consensus 
gentium  is  deduced  from  a  merely  passive  attitude  on  the 
part  of  the  nations,  because  the  diplomatic  history  of 
certain  powers  shows  that  for  more  than  half  a  century 
they  have  been  seeking  to  establish  rights  of  their  own  in  the 
Gulf  for  purposes  of  commercial  policy,  but  always  on  the 
basis  of  respect  for  the  ownership  and  possession  which  the 
States  have  maintained  by  virtue  of  their  sovereign  author- 

ity. 

Those  efforts,  manifested  in  conventions  entered  into 
with  certain  Governments  of  Central  America,  or  by 
attempts  of  a  different  import  on  the  part  of  agents  of 
those  powers,  had  the  result,  finally — and  for  the  purpose  of 
putting  an  end  to  repeated  and  dangerous  controversies — 
of  crystalizing  themselves  in  the  stipulations  of  the 
Clayton-Bulwer  Treaty  of  April  19,  1850,  between  the 
United  States  and  Great  Britain,  wherein  was  announced 


42 

reciprocally  the  right  to  construct  or  maintain  fortifica- 
tions dominating  any  canal  across  the  Isthmus,  or  to 
occupy,  fortify,  colonize  or  exercise  any  measure  of 
dominion  over  Nicaragua,  Costa  Rica,  the  Mosquito 
Coast  or  any  other  part  of  Central  America.  The 
coveted  Gulf  of  Fonseca,  then,  was  protected  against  all 
danger,  at  least  down  to  the  time  of  the  conclusion  of  the 
Hay-Pauncefote  Treaty,  which  abrogated  the  former  pact. 

Therefore,  whatever  may  have  been  the  motives  that 
brought  about  the  conclusion  of  the  Clayton-Bulwer 
Treaty,  and  whether  or  not  those  motives  are  the  subject 
of  divergent  points  of  view,  the  fact  is  that  that  pact 
consecrated  a  principle  of  justice — of  honorable  respect  for 
the  sovereignty  and  independence  of  the  weak  Central 
American  nations — which  should  continue  to  serve  as  the 
rule  of  action  in  the  international  legal  relations  respecting 
the  Gulf  of  Fonseca. 

The  locality  and  geographic  conditions  of  the  Gulf 
should  be  studied  in  the  light  of  the  following  maps  that 
the  Court  has  had  before  it:  a  copy  of  the  map  issued  by 
the  American  Admiralty  (i.  e.,  the  United  States  Hydro- 
graphic  Office,  see  Chart  No.  973),  and  which,  in  the  opin- 
ion of  the  engineers  Barberena  and  Alcaine,  is  the  best  map 
extant  of  this  part  of  the  Central  American  coast  and  the 
one  that  served  as  the  basis  of  the  report  and  opinion  of 
those  engineers ;  the  map  drawn  and  published  in  1884  by  a 
North  American  naval  commission  under  the  direction  of 
Commander  E.  C.  Clark;  the  map  prepared  in  1838  by 
Captain  Sir  Edward  Belcher  of  the  Royal  English  Navy 
which  was  used  by  E.  G.  Squier  in  connection  with  his 
interesting  work,  Notes  on  Central  America,  published  in 
1850,  and,  finally,  the  map  published  in  1909  by  the 
engineer  E.  C.  Fiallos.  The  report  and  opinion  of  the 
above-mentioned  engineers  filed  with  the  complaint 
states : 


43 

"Paralleling  the  coast,  we  have  traced  on  the 
Salvadorean  and  Nicaraguan  parts  that  form  the 
gullets  or  entrance  to  the  Gulf,  the  two  lines  (distant 
twelve  miles  from  the  coast)  that  mark  the  respective 
limits  of  the  zone  of  Maritime  Inspection  according 
to  the  generally  accepted  prescriptions  in  that  con- 
nection, and  it  is  thus  clearly  to  be  seen  that  those 
lines  intercept  or  overlap,  thus  closing  the  Gulf, 
which  is  thereby  reduced  to  an  interior  bay  of  purely 
Central  American  jurisdiction. 

' '  We  have  arrived  at  the  same  conclusion  by  merely 
considering  that  the  entrance  to  the  Gulf  is  35  kilo- 
meters, approximately,  from  Amapala  Point,  in  El 
Salvador,  to  Cosiguina  Point,  in  Nicaragua ;  and  that, 
by  measuring  four  marine  leagues,  or  22,220  meters, 
from  each  of  those  points,  the  lines  traced  necessarily 
meet  and  dovetail;  otherwise  the  entrance  would 
have  to  be  at  least  44,440  meters,  or  nearly  10  kilo- 
meters wider  than  it  is. 

"If  the  shortest  distance  between  Meanguerita 
Island — an  integral  part  of  the  Salvadorean  coast— 
and  the  Peninsular  of  Cosiguina  be  taken  as  the 
points  of  entrance  to  the  Gulf,  the  width  would  be  15 
kilometers,  which  is  barely  equal  to  8  miles;  and,  if  the 
islets  known  as  the  Farallones  be  taken  as  the  limit 
of  the  Nicaraguan  coast  on  that  side,  the  entrance 
would  be  reduced  to  7  kilometers  950  meters,  or  some 
4  miles  and  a  little  more  than  a  quarter." 

The  foregoing  could  be  reenforced  from  other  authorita- 
tive sources,  such  as  the  Lawyers'  Society  of  Honduras, 
which  adopted  the  report  of  a  select  commission  appointed 
to  study  the  legal  aspects  of  the  case  of  the  Gulf  of 
Fonseca  in  relation  to  the  Bryan-Chamorro  treaty,  and 
which  report  is  published  in  the  important  review  of  that 
body  known  as  the  Foro  Hondureno,  and  the  description 
given  by  the  geographer  Squier  in  his  above-mentioned 
work.  The  report  of  that  commission  reads  as  follows: 

"The  entrance  is  fixed  by  a  straight  line  running 
from  Cosiguina  Point,  in  Nicaragua,  to  Amapala 


44 

Point,  in  El  Salvador,  a  distance  of  19^5  geographic 
miles  or  35  kilometers  and  a  fraction.  Its  coves  or 
bays  are  those  of  Cosigiiina,  San  Lorenzo  and  La 
Uni6n,  and  its  principal  islands  are  Tigre,  Zacate 
Grande,  Giiegiiensi,  Exposicion,  the  islets  of  Sirena, 
Verde,  Violin,  Garrobo,  Coyote,  Vaca,  Pajaros  and 
Almejas,  belonging  to  Honduras;  Meanguera,  Con- 
chagiiita,  Meanguerita,  Punta  Zacate,  Martin  Perez 
and  other  islets  belonging  to  El  Salvador,  and  the 
Farallones,  belonging  to  Nicaragua.  Between  El 
Salvador  and  Honduras  no  definitive  treaty  has  been 
entered  into  marking  out  the  two  jurisdictions  over 
the  waters  of  this  Gulf. 

"In  order  to  arrive  at  the  distances  between  the 
points  pertinent  to  the  present  inquiry,  we  have  taken 
as  a  basis — without  prejudice,  however,  to  other 
opinions — the  map  prepared  and  published  in  1884  by 
American  naval  officers  under  the  direction  of  Com- 
mander E.  C.  Clark,  which  agrees  almost  entirely 
with  the  Sonnestern  map  and  with  Nicaragua's  1905 
map,  published  by  the  Oficina  Internacional  Pan- 
americana.  The  map  published  in  Honduras  in  1909 
by  the  engineer  E.  C.  Fiallos  shows  certain  insignifi- 
cant differences  from  the  one  we  have  taken  for  our 
basis. 

"The  width  of  the  waters  in  the  Cove  of  Cosigiiina, 
on  the  boundary  line  with  Nicaragua,  and  drawn  by 
the  Mixed  Commission  of  1894,  is  loj  marine  miles, 
or  19  kilometers.  Half  that  distance  is  5^  miles, 
or  9.5  kilometers.  From  the  coast  to  Amatillo  the 
distance  is  approximately  17.5  kilometers.  From 
Rosario  Point,  or  Mony  Penny,  towards  the  Southern- 
most point  of  Tigre  Island,  the  distance  is  uj  miles 
or  21  kilometers.  From  Rosario  Point  to  Mean- 
guerita it  is  8f  miles.  From  Amapala  Point  to 
Rosario  Point,  19^  miles;  half  that  distance  is  9! 
miles.  From  Amapala  Point  to  the  Farallones  the 
distance  is  15!  miles  and  from  those  islets  to  Rosario 
Point,  6  miles.  From  Meanguerita  to  the  Farallones, 
15  kilometers. 

"The  northern  and  eastern  coasts  of  this  Gulf 
belong  to  Honduras,  and  they  are  more  than  60 


45 

geographic  or  marine  miles  in  extent.  The  coasts 
that  belong  to  Nicaragua  on  the  south  extend  for  57 
miles  from  Amatillo  Point  to  Cosigiiina  Point ;  and  the 
Salvadorean  coasts,  to  the  west,  extend  over  a 
distance  of  25  miles.  There  is,  therefore,  in  the  waters 
of  the  Gulf  of  Fonseca,  an  overlapping  of  the  juris- 
dictions of  the  States  of  Honduras,  Nicaragua  and  El 
Salvador. 

"The  depth  of  water  in  the  Gulf  varies  from  14  to 
25  feet  at  the  entrance.  In  the  interior  are  certain 
points  of  considerable  depth  and  others  where  it  does 
not  exceed  three  feet.  The  channel  for  deep-sea 
vessels  runs  between  Meanguerita  and  the  Cosigiiina 
coast,  although  the  depth  of  10  to  15  feet  between 
Meanguera  and  Conchaguita  also  permits  the  passage 
of  vessels  of  regular  draft.  These  are  the  only 
entrance  points  towards  Amapala.  The  entrance  to 
La  Uni6n  for  deep-sea  vessels  is  by  way  of  the  channel 
lying  between  the  Conchagua  coast  and  the  Islands  of 
Conchaguita  and  Punta  Zacate.  Outside  of  these 
routes  navigation  is  dangerous  because  of  shallowness 
and  the  existence  of  many  sandbanks.  The  safest 
anchorages  at  present  are  Amapala  and  La  Uni6n. 
San  Lorenzo  and  Cosigiiina  Bays  or  Coves  have  a 
mean  depth  of  7  feet,  which  permits  navigation  by 
light-draft  vessels  only,  and  at  the  widest  part 
of  the  Gulf,  which  lies  between  Tigre  Island  and  the 
Real  Estuary,  in  Nicaragua,  the  mean  depth  is  from  6 
to  7  feet." 

And,  finally,  the  North  American  geographer  makes  the 
following  statement  on  this  subject: 

"The  Bay  of  Fonseca,  sometimes  called  the  Gulf  of 
Amapala  or  Gulf  of  Conchagua,  is  without  dispute 
one  of  the  best  ports — or,  rather  'constellation  of 
ports' — along  the  entire  extent  of  the  Pacific  coast 
of  this  continent.  Its  greatest  length  is  50  miles  and 
its  mean  width  is  30  miles. 

"It  will  be  seen  that  this  bay  lies  in  the  great  longi- 
tudinal valley  comprised  between  the  volcanic  hills 
of  the  coast  and  the  true  cordillera  that  extends  from 


46 

Guatemala  to  Costa  Rica.  The  entrance  from  the  sea 
into  the  bay  is  nearly  1^8  miles  between  the  great 
volcanoes  of  Conchagua  "and  Cosigiiina,  which,  like 
giant  guardians,  stand  on  either  side  as  unfailing 
guides  to  mariners.  On  a  line  behind  this  entrance, 
and  almost  equidistant  therefrom,  lie  the  two 
considerable  islands  of  Conchagiiita  and  Meanguera 
and  a  group  of  rocks  called  the  Farallones  which 
protect  the  bay  against  the  force  of  the  ocean  swells 
and  divide  the  entrance  into  four  channels  of  sufficient 
depth  to  admit  vessels  of  all  drafts. 

"The  Bay  of  Fonseca,  by  reason  of  its  admirable 
ports,  the  means  it  offers  for  the  construction  and 
repair  of  vessels,  its  productive  lands  and  the  local 
traffic  between  El  Salvador,  Honduras  and  Nicaragua, 
is  of  great  value  and  importance  commercially.  But 
its  value  to  us  is  even  greater,  considering  its  position 
from  a  political  and  geographical  point  of  view  and 
especially  as  the  inevitable  terminal,  in  the  Pacific, 
of  a  railway  between  the  two  oceans.  And  I  do  not 
hesitate  to  repeat  what  I  said  on  a  former  occasion  to 
the  Government  of  the  United  States  when  I  was  its 
representative  in.  Central  America:  'The  Bay  of 
Fonseca  is  under  every  consideration  the  most  impor- 
tant position  on  the  Pacific  coasts  of  Central  America 
and  so  favored  by  nature  that  it  cannot  escape  becom- 
ing the  emporium  of  commerce  and  the  center  of 
enterprises  in  that  part  of  the  continent." 

The  foregoing  descriptions  give  an  exact  idea  of  how 
vital  are  the  interests  guarded  by  the  Gulf  of  Fonseca,  and, 
if  those  interests  are  of  incalculable  value  in  making  up  the 
characteristics  of  an  "Historic  Bay"  applicable  thereto, 
there  are  other  factors  that  determine  even  more  clearly 
that  legal  status.  These  are: 

A.  The  projected  railway  that  Honduras  began 
and  which  she  will  not  abandon  until  this  great 
aspiration  of  hers  shall  have  been  concluded.  Over 
that  railway  will  pass  the  interoceanic  traffic  that  is 
to  develop  the  rich  and  extensive  regions  of  the 


47 

country.  Its  terminal  stations,  with  their  wharves, 
etc.,  will  be  located  very  probably  on  one  of  the  prin- 
cipal islands  nearest  the  coast  of  the  Gulf. 

B.  El  Salvador,  in  her  turn  has  under  her  control  a 
railroad  which,  starting  at  the  port   of  La  Union, 
follows  its  course  through  important  and  rich  depart- 
ments of  the  Republic  to  connect  with  lines  entering 
from  Guatemala  at  the  Salvadorean  frontier. 

C.  The  long-projected  prolongation  of  the  Chinan- 
dega  railroad  to  a  point  on  the  Real  Estuary  on  the 
Gulf  of  Fonseca  to  expedite  and  make  more  frequent 
communication   on   that   side  with   the   interior  of 
Nicaragua. 

D.  The  establishment  of  a  free  port  decreed  by  the 
Salvadorean  Government  on  Meanguera  Island. 

E.  The  Gulf  is  surrounded  by  various  and  extensive 
departments  of  the  three  riparian  countries.     These 
are  of  great  importance  because  they  are  destined  to 
great  commercial,  industrial  and  agricultural  develop- 
ment; their  products,  like  those  of  the  departments 
in  the  interior  of  those  States,  must  be  exported  by 
way  of  the  Gulf  of  Fonseca,  and  through  that  Gulf 
must  come  also  the  increasing  importations. 

F.  The  configuration  and  other  conditions  of  the 
Gulf  facilitate  the  enforcement  of  fiscal  laws  and 
regulations    and    guarantee    the    full    collection    of 
imposts  against  frauds  against  the  fiscal  laws. 

G.  The  strategic  situation  of  the  Gulf  and  its  islands 
is  so  advantageous  that  the  riparian  States  can  defend 
their   great   interests   therein   and   provide   for   the 
defence  of  their  independence  and  sovereignty. 

Whereas:  It  is  clearly  deducible  from  the  facts  set  forth 
in  the  preceding  paragraphs  that  the  Gulf  of  Fonseca 
belongs  to  the  special  category  of  historic  bays  and  is  the 
exclusive  property  of  El  Salvador,  Honduras  and  Nicara- 
gua ;  this  on  the  theory  that  it  combines  all  the  character- 
istics or  conditions  that  the  text  writers  on  international 
law,  the  international  law  institutes  and  the  precedents 
have  prescribed  as  essential  to  territorial  waters,  to  wit. 


48 

secular  or  immemorial  possession  accompanied  by  animo 
domini  both  peaceful  and  continuous  and  by  acquiescence 
on  the  part  of  other  nations,  the  special  geographical 
configuration  that  safeguards  so  many  interests  of  vital 
importance  to  the  economic,  commercial,  agricultural  and 
industrial  life  of  the  riparian  States  and  the  absolute,  indis- 
pensable necessity  that  those  States  should  possess  the 
Gulf  as  fully  as  required  by  those  primordial  interests 
and  the  interest  of  national  defence. 

Whereas:  The  High  Party  Defendant,  in  its  answer  and 
in  its  allegations  in  opposition  to  the  points  of  law  set  up 
by  the  High  Party  Complainant  in  its  complaint,  admits 
the  following  concrete  propositions: 

(a)  The  Gulf  of  Fonseca  is  a  closed  or  territorial 
sea  because  it  is  small  in  extent  and,  therefore,  belongs 
to  the  nations  that  own  its  coasts. 

(b)  The  Gulf  of  Fonseca  is  a  bay  owned  exclusively 
by  El  Salvador,  Honduras  and  Nicaragua ;  but  only  as 
to  the  maritime  territorial  part  that  belongs  to  them 
respectively  as  owners  of  their  coasts  in  their  respec- 
tive parts. 

(c)  Although  Nicaragua,  Honduras  and  El  Salva- 
dor are  owners  of  the  Gulf,  in  those  parts  that  pertain 
to  each  there  is  no  community  in  the  legal  acceptation 
of  the  word;  because  the  mere  fact  that  there  is  no 
demarcation  of  frontier  lines  between  two  or  more 
countries  does  not  constitute  community,  although 
such  lack  of  demarcation  may  have  existed  during  the 
colonial  dominion  or  during  the  brief  domination  by 
the  Central  American  Federation.     Even  under  the 
Spanish    dominion    territorial    delimitations    of    the 
colonies  were  not  ignored ;  this  is  shown  by  Appendix  2 
which  refers  to  a  royal  cedula  addressed  on  the  nth 
of  January,  1541,  to  all  the  governors,  judges  and 
captains  of  the  Indies  and  of  the  islands  and  mainland 
of  the  ocean  sea,  commanding  them  to  respect  the 
boundaries  of  the  Cartago  Government  (Gobernacidn 
de  Cartago). 


49 

(d)  The  Government  of  Nicaragua  recognizes  that 
States  may  exercise  imperium  beyond  their  absolute 
jurisdiction  over  the  sea,  but  in  front  of  the  coast  over 
the  open  sea,  and  not  to  the  right  or  left  over  portions 
of  the  territorial  sea  pertaining  to  other  nations,  for 
the  insurmountable  barrier  of  foreign  sovereignties 
here  arises  to  oppose  such  exercise  of  imperium.     It 
also  recognizes  that  the  overlapping  of  lines  traced 
parallel  to  the  coasts  at  a  distance  of  twelve  miles 
respectively  from  the  Points  of  Amapala  and  Cosi- 
guina  only  demonstrates  that  the  Gulf  of  Fonseca  is 
territorial,   but  urges  that  the  fact  of  overlapping 
does  not  give  the  Government  of  El  Salvador  the 
right  to  exercise  its  imperium  over  the  parts  of  the 
Gulf  itself  that  belong  to  Honduras  and  Nicaragua 
territorially. 

(e)  The    jurisdictional    waters    of    El    Salvador, 
Honduras  and  Nicaragua  do  not  merge  and  commingle 
in  the  Gulf  itself,  and,  therefore,  even  in  those  waters 
thereof  wherein  the  States  may  exercise  police  power 
and  rights  looking  to  security  and  defence,  they  may 
not  maintain  and  exercise  rights  of  sovereignty  and 
co-ownership. 

Whereas:  The  theory  that  the  High  Party  Defendant 
accepts  as  the  true  test  of  the  territoriality  of  the  Gulf  is 
one  that  must  be  examined  in  the  light  of  the  distances 
traced  on  the  maps,  because  they  give  an  idea  of  the  real, 
or  at  least  probable,  extent  of  the  Gulf.  The  geographer 
Squier  fixes  it  approximately  at  50  miles  in  length  by  30  in 
width.  The  technical  study  by  the  engineers  Barberena 
and  Alcaine  declares  the  existence  of  two  zones  in  which, 
according  to  the  law  of  nations  and  the  internal  laws  of  the 
riparian  states,  they  may  exercise  their  jurisdiction,  to  wit, 
the  zone  of  one  marine  league  contiguous  to  the  coasts, 
wherein  the  jurisdiction  is  absolute  and  exclusive,  and  the 
further  zone  of  three  marine  leagues,  wherein  they  may 
exercise  the  right  of  imperium  for  defensive  and  fiscal 
purposes.  And,  in  referring  to  the  lines  drawn  parallel 


50 

with  the  coast  from  Amapala  Point,  in  El  Salvador,  and 
from  Cosigiiina  Point,  in  Nicaragua,  those  engineers  claim 
that  there  is  an  overlapping  of  jurisdictions  in  the  zones  of 
maritime  inspection. 

So,  then,  if  those  lines  be  prolonged,  following  the 
contours  of  the  respective  coasts  in  that  expanse  of  waters 
which,  like  a  vestibule,  lead  up  to  the  other  or  inner  and 
narrower  entrance  to  the  bay — i.  e.y  the  one  between 
Meanguerita  and  the  Cosigiiina  Peninsular — as  far  as  the 
heights  of  the  islands  and  promontories,  which  constitute 
a  sort  of  counterfort  that  moderates  the  force  of  the  waves 
entering  the  Bay  from  the  outer  sea,  the  overlapping 
becomes  more  pronounced,  and  probably  might  even 
extend  over  and  embrace  certain  parts  of  the  adjacent 
three-mile  territorial  zone  over  which  the  riparian  States 
enjoy  exclusive  ownership.  The  circumstance  that,  in 
that  narrower  entrance,  the  line  between  Meanguerita 
and  the  Cosigiiina  Peninsular,  may  be  a  little  more  than 
eight  miles  in  length,  or  four  miles  and  a  quarter  if  it  runs 
by  way  of  the  Farallones,  off  the  Nicaraguan  coast,  is 
undoubtedly  a  condition  characteristic  of  territorial  seas 
because  that  entrance  is  susceptible  of  defence  by  the 
cross-fire  of  cannon;  but,  taken  alone,  it  is  not  sufficient 
for  the  deduction  that  because  of  its  small  extent  the 
Gulf  is  a  territorial  sea,  since  the  merging  in  the  mari- 
time inspection  zone,  chiefly  in  the  gullets  or  entrances, 
shows  the  existence  of  a  greater  expanse  of  water  than 
is  comprised  in  that  zone  and  over  which  each  of  the 
States  enjoys  exclusive  ownership. 

Much  less  can  it  be  said  that  the  conception  of  the 
authorities  cited  (Calvo,  Grotius,  Vattel  and  others)  may 
be  applied  to  such  considerable  expanses  of  waters  as  that 
of  the  Gulf  of  Fonseca.  The  lesser  of  the  distances  as  to 
which  consideration  has  been  given,  only  indicates  the 
need  of  the  proprietary  States  of  the  Gulf  to  maintain 


their  exclusive  ownership  because  of  its  strategic  qualifica- 
tions for  defence  against  outside  attack;  and  this  is  the  more 
evident  when  the  historic  origin  of  the  ownership  is  taken 
into  account  for  the  purpose  of  showing  continuous,  peace- 
ful and  undisputed  use  of  the  waters  of  the  Gulf  itself — a 
further  capital  characteristic  that  gives  it  a  special  legal 
status. 

Whereas:  The  juridical  character  of  the  Gulf  of  Fonseca 
is  subordinated  to  other  conditions  of  first  importance 
than  those  relating  to  the  extent  more  or  less  great  of  its 
capacity  and  the  narrowness  of  entrance ;  and  it  is  in  that 
sense  that  this  Court  has  held  it  to  belong  to  the  category  of 
historic  bays  and  to  be  possessed  of  the  characteristics  of  a 
closed  sea,  basing  its  opinion  on  what  was  decided  as  to 
territorial  waters  by  the  arbitral  award  of  the  Permanent 
Court  of  the  Hague  of  September  7,  1910,  and  on  the 
voluminous  commentaries  of  the  eminent  jurist,  Dr.  Drago, 
one  of  the  judges  in  the  arbitration  who  rendered  a  sepa- 
rate opinion  citing  authorities  on  the  point. 

In  fact,  the  award  admitted  the  British  claim  that  the 
bays  referred  to  in  the  treaty  with  the  United  States, 
which  was  the  basis  of  the  controversy,  are  "geographic 
bays"  irrespective  of  the  width  of  their  entrances;  that 
they  are  "exceptions"  and,  according  to  the  international 
writer  cited,  "appear  in  many  treaties,  and  the  doctrine 
expressly  recognizes  them."  "The  character  of  a  bay," 
said  the  arbitral  tribunal,  "is  subject  to  conditions  that 
concern  the  interests  of  the  territorial  sovereign  to  a  more 
intimate  and  important  extent  than  those  connected  with 
the  open  coast.  Thus  conditions  of  national  and  terri- 
torial integrity,  of  defense,  of  commerce  and  of  industry, 
are  all  vitally  concerned  with  the  control  of  the  bays 
penetrating  the  national  coast  line."  Dr.  Drago,  com- 
menting on  the  award  in  his  dissent,  said : 


52 

"In  what  refers  to  bays  it  has  been  proposed  as  a 
general  rule  that  the  marginal  belt  of  territorial 
waters  should  follow  the  sinuosities  of  the  coast,  so 
that  the  marginal  belt  being  of  three  miles,  only  such 
bays  should  be  held  as  territorial  as  have  an  entrance 
not  wider  than  six  miles. 

"If  the  marginal  belt  be  traced  geographically  along 
the  sinuosities  of  the  coast,  it  will  be  noted  that  at  the 
point  of  entrance  where  the  two  lateral  zones  meet, 
there  is  a  small  triangle,  or  funnel-shaped  figure,  the 
delimination  of  which  would  be  very  difficult  in 
actual  practice.  For  reasons  of  convenience,  and  in 
order  to  avoid  involuntary  trespassing  on  fishing 
waters,  many  recent  treaties,  particularly  those  of 
Great  Britain,  have  extended  the  width  of  the  entrance 
to  ten  miles,  measured  between  the  opposite  points 
towards  the  open  sea. 

"But  this  refers  to  common  or  ordinary  bays,  and 
not  to  those  which,  in  our  dissent,  we  have  called 
'historic  bays.'  As  has  been  seen,  the  principle  that 
underlies  all  the  rules  and  jurisdictional  distances  is 
no  other  than  that  of  paramount  necessity  to  protect 
fiscal  interests,  persons  and  territory  of  the  nation  that 
claims  sovereignty  over  the  contiguous  seas  and  over 
the  gulfs,  bays  and  coves  that  penetrate  its  coast 
line. 

"From  this  point  of  view  a  fundamental  distinction 
instantly  becomes  apparent.  Not  all  of  the  entrances 
from  the  sea  are  of  equal  importance  for  defense,  nor 
do  they  all  demand  the  same  degree  of  protection. 
Some  are  far  from  the  centers  of  population,  in  places 
uninhabited  or  inaccessible  and  without  fisheries  or 
other  exploitable  wealth;  and  some  are  so  intimately 
involved  in  the  very  vitals  of  a  nation  that  any 
departure  from  full,  absolute  and  indisputable  posses- 
sion thereof  would  be  intolerable.  Delaware  Bay, 
which  stands  as  the  entrance  to  the  great  port  of 
Philadelphia,  Chesapeake  Bay,  which  lies  in  a 
populous  district  of  the  United  States,  Conception 
Bay,  in  Newfoundland,  from  which,  by  an  easy 
descent,  the  capital  of  that  colony  would  be  vulner- 
able— all  are  in  that  class.'* 


53 

Dr.  Drago  cites  the  opinions  of  Chancellor  Kent, 
Secretaries  of  State  Pickering,  Buchanan  and  John  Davis, 
and  concludes  his  commentary  by  saying: 

"The  United  States  appear  to  have  abandoned  that 
exaggerated  theory  (referring  to  the  doctrine  of  prom- 
ontories). At  least,  in  the  case  before  us,  they 
adhere  to  the  strict  rule  of  the  six-mile  entrance  for 
the  generality  of  bays ;  but  they  except,  as  in  necessity 
bound  to  do,  their  own  vital  bays,  and  cite  a  great 
collection  of  authorities  and  arguments  in  support  of 
their  exception.  Those  excepted  bays  appear  in 
many  treaties  and  the  doctrine  expressly  recognizes 
them.  *  *  *  Continued  use,  necessities  of  self- 
defense  and  the  will  to  appropriate  expressly  stated, 
must  have  greater  weight  in  this  case  than  in  any 
other  in  giving  effect  to  the  theory  of  acquisition  by 
prescription,  and  as  placing  historic  bays  in  a  special 
and  separate  category,  wherein  ownership  belongs  to 
the  embracing  country,  which,  having  made  the 
declaration  of  its  sovereignty,  has  affirmed  possession 
and  incorporated  them  into  its  dominion  with  the 
acquiescence  of  the  other  nations." 

And,  finally,  it  is  worthy  of  consideration  that  the 
Government  of  the  United  States  itself,  in  the  note 
addressed  by  the  Department  of  State  on  the  i8th  of 
February,  1914,  to  the  Minister  of  El  Salvador  at  Wash- 
ington, said  categorically: 

"In  your  protest  the  position  is  taken  that  the 
Gulf  of  Fonseca  is  a  territorial  bay  whose  waters  are 
within  the  jurisdiction  of  the  bordering  States.  This 
position  the  Department  is  not  disposed  to  contro- 
vert." 

This  evidently  implies  an  express  recognition  of  the 
unequivocal  claim  of  sovereignty  set  up  by  the  three  States 
that  surround  the  Gulf.  The  Secretary  of  State  could  do 
no  less  than  follow  the  traditional  doctrine  proclaimed  by 
other  representatives  and  statesmen  of  the  great  North 


54 

American  nation  and  apply  it  to  the  vital  bays  that  indent 
the  extensive  coasts  of  the  federal  territory. 

Whereas:  in  regard  to  the  co-ownership  in  the  Gulf  of 
Fonseca  claimed  by  the  High  Party  Complainant,  and  in 
view  of  what  is  alleged  on  that  point  by  the  High  Party 
Defendant,  the  question  of  division,  demarcation  or 
delimitation  of  jurisdictions  between  the  provinces  that 
constituted  the  patrimony  of  the  Spanish  Crown  must  be 
examined  in  the  light  of  historical  truth  in  order  to 
harmonize  their  conclusions  with  the  legal  relations  that 
now  govern  among  the  riparian  States.  A  series  of  con- 
troversies over  purely  territorial  boundaries  demonstrates 
that  the  royal  cedulas  traced  topographical  lines  based  on 
the  claims  of  the  governors  of  the  political  divisions  who 
knew  little  about  their  geographical  conditions,  wherefore 
arose  many  errors  as  to  places,  directions  and  distances. 
These  circumstances,  on  the  one  hand,  and,  on  the  other, 
the  secondary  consideration  that  monarchs  were  not  inter- 
ested to  prevent  jurisdictional  transgressions,  since  the 
patrimony  of  those  political  divisions  pertained  to  a  single 
proprietor  or  lord,  resulted  in  the  fact  that  the  demarca- 
tions were  in  general  confused  and  lacking  in  detail  as  is 
very  properly  said  by  counsel  for  Nicaragua.  Proof  of 
this  lies  in  the  fact  that  in  their  autonomous  lives  the 
Central  American  countries,  and  even  the  other  countries 
of  Latin  America,  have  found  themselves  under  the  supreme 
necessity  to  mark  out  and  make  clear  their  frontiers  in 
order  to  preserve  harmony  among  the  sister  peoples, 
and  in  the  failure  of  his  Majesty  the  King  of  Spain,  Don 
Alfonso  XIII,  in  rendering  his  arbitral  award  in  the 
boundary  arbitration  between  Honduras  and  Nicaragua, 
to  give  weight  to  the  royal  cedula  because  the  capitulation 
with  Diego  Gutierrez  of  January  n,  1541,  referred  to 
territories  with  which  it  had  nothing  to  do,  such  as 
Honduras  and  Nicaragua. 


55 

With  respect  to  the  Gulf  of  Fonseca,  it  must  be  noted 
that,  as  no  fact  of  first  importance  had  disturbed  the 
cordial  harmony  of  the  States  that  surround  it  in  the  use 
and  benefits  of  its  waters,  the  Governments  concerned 
themselves  solely  with  fixing  upon  portions  thereof  as  to 
which  the  exercise  of  the  rights  of  neighboring  countries 
might  involve  them  in  conflict.  Thus  it  was  that  by 
mixed  commissions,  in  1884,  between  El  Salvador  and 
Honduras,  and,  in  1900,  between  the  latter  and  Nicaragua, 
in  marking  out  and  making  clear  their  respective  land 
frontiers,  they  reached  the  point  of  drawing  divisionary 
lines  that  started  from  certain  coves  and  extended  to  a 
certain  point  in  the  Gulf.  The  first  line  did  not  endure 
because  the  Honduran  Congress  rejected  the  convention 
relating  to  land  boundaries,  signed  at  San  Miguel,  in  the 
Republic  of  El  Salvador,  on  the  loth  of  April,  1884,  on 
the  ground,  among  others,  that  the  Commission  exceeded 
its  powers  by  extending  its  operations  to  the  Gulf,  a  course 
unauthorized  by  the  Honduran  Government  (Legislative 
Decree  of  1885).  The  division  adjusted  with  Nicaragua 
is  the  only  one  that  still  subsists.  The  line  of  this  divi- 
sion appears  on  the  maps  here  presented  as  running  to  a 
point  midway  between  the  southern  part  of  Tigre  Island 
and  the  northern  part  of  Cosigiiina  Point  (Mony  Penny, 
or  Rosario  Point),  thus  leaving  undivided  a  considerable 
expanse  of  waters  belonging  to  the  riparian  States  which 
extends  as  far  as  the  Gulf's  great  outside  entrance,  which 
measures  35  kilometers  in  width. 

Escriche's  Dictionary  of  Legislation  and  Jurisprudence 
defines  "community"  as  the  quality  that  makes  a  thing 
common,  so  that  any  one  may  participate  freely  in  its 
use;  "common"  things  are  those  which,  belonging 
privately  to  no  one,  belong  or  extend  to  many,  all  of  whom 
enjoy  the  equal  right  to  make  use  of  them;  "possession  in 
common"  is  the  enjoyment  of  or  possession  by  two  or 


56 

more  persons  of  the  same  thing  undivided,  that  is,  in  such 
way  that  the  thing  in  its  entirety  belongs  to  all,  none  being 
able  to  specify  his  part. 

The  High  Party  Defendant  recognizes  that  no  demarca- 
tion existed  among  the  countries  adjacent  to  the  Gulf 
prior  to  their  constitution  as  independent  entities,  not- 
withstanding the  fact  that  demarcations  were  then  not 
unknown ;  but  no  proof  whatever  is  adduced  to  show  that 
subsequently  those  same  States  ever  effected  a  complete 
division  of  all  the  waters  embraced  therein,  for,  although 
there  was  a  division  made  with  Honduras  in  1900 — which 
has  been  here  invoked — the  line  drawn,  according  to  the 
map  of  the  engineer  Fiallos  (who  was  a  member  of  the 
Mixed  Commission),  only  extends  as  far  as  a  point  midway 
between  Tigre  Island  and  Cosiguina  Point,  thus  leaving 
undivided,  as  already  stated,  a  considerable  portion  of  the 
waters  embraced  between  the  line  drawn  from  Amapala 
Point  to  Cosiguina  Point  and  the  terminal  point  of  the 
division  between  Honduras  and  Nicaragua. 

Consequently,  it  must  be  concluded  that,  with  the 
exception  of  that  part,  the  rest  of  the  waters  of  the  Gulf 
have  remained  undivided  and  in  a  state  of  community 
between  El  Salvador  and  Nicaragua,  and  that,  by  reason 
of  the  particular  configuration  of  the  Gulf,  those  waters, 
though  remaining  face  to  face,  were,  as  declared  in  the 
report  of  the  engineers  Barberena  and  Alcaine  and  as 
recognized  by  the  High  Party  Defendant,  confounded  by 
overlapping. 

And,  since  it  is  true  in  principle  that  the  absence  of 
demarcation  always  results  in  community',  it  is  self  evident 
that  every  community  necessarily  presupposes,  in  the  legal 
sense,  the  absence  of  partition.  This  community  in  the 
Gulf  has  continued  to  exist  by  virtue  of  continued  and 
peaceful  use  of  it  by  the  riparian  States,  and  this  is  shown 
most  clearly  by  the  overlapping  of  jurisdictions  in  the  zone  in 


57 

which  both  litigant  countries  have  been  exercising  their 
rights  of  imperium;  though  from  this  it  is  deduced  that 
that  legal  status  does  not  exist  in  the  three  marine  miles 
that  form  the  littoral  on  the  coasts  of  the  mainland  and 
islands  which  belong  to  the  States  separately  and  over 
which  they  exercise  ownership  and  possession  both 
exclusive  and  absolute. 

Similarly,  no  community  exists  in  those  waters  that  are 
embraced  between  islands  and  promontories  the  proximity 
of  which  to  each  other,  in  the  littoral  zones  of  exclusive 
ownership,  results  in  an  overlapping  of  the  jurisdictions  of 
the  States,  for  in  that  case  the  demarcations  must  result 
from  an  arrangement  in  conformity  with  the  recognized 
principles  of  international  law.  It  is,  therefore,  evident 
that  the  exercise  of  jurisdiction  in  the  unpartitioned 
waters  is  based  on  the  legal  nature  of  the  Gulf,  which 
makes  them  common,  and  in  the  all-important  necessity 
to  protect  and  defend  the  vital  interests  of  commerce  and 
industries,  these  being  indispensable  to  national  develop- 
ment and  prosperity. 

A  change  in  the  theory  of  the  use  of  the  common  waters 
of  the  Gulf — which  waters,  because  of  their  nature,  must 
respond  to  the  reciprocal  needs  of  the  adjacent  States- 
would  imply  nullification  of  jurisdictional  rights  that  should 
be  exercised  with  strict  equality  and  in  harmony  with 
the  interests  of  the  community.  One  coparcener  cannot 
lawfully  alter,  or  deliver  into  the  hands  of  an  outsider, 
or  even  share  with  it,  the  use  and  enjoyment  of  the  thing 
held  in  common,  even  though  advantage  might  result 
therefrom  to  the  other  coparceners,  unless  the  consent  of 
all  is  obtained.  Wherefore,  in  the  case  here  at  issue, 
the  concession  of  the  naval  base  in  the  Gulf  granted  by 
the  Government  of  Nicaragua  to  the  United  States,  at 
such  point  on  Nicaraguan  territory  as  the  concessionary 
may  select  (Article  II  of  the  Bryan-Chamorro  treaty), 


58 

necessarily  presupposing,  as  it  does,  occupation,  use  and 
enjoyment  of  waters  in  which  El  Salvador  possesses  a  right 
of  co-sovereignty,  would  have  the  practical  effect  of 
nullifying,  or  at  least  restricting,  those  primordial  rights; 
because  American  warships  in  those  waters,  and  all  that 
depends  on  the  naval  base  as  well  as  territory,  as  such, 
and  water  highways,  would  be  subject  exclusively  to  the  laws 
and  sovereign  authority  of  the  United  States  (Article  II 
of  the  above-mentioned  treaty) ;  in  other  words,  the  con- 
cession in  question  grafts  a  foreign  power  upon  a  part  of 
the  continent  that  has  been,  and  is,  subject  to  the  exclusive 
and  undivided  ownership  of  three  sister  nations  and  thus 
places  in  grave  danger  the  vital  interests  that  they  of 
necessity  must  possess  and  protect  for  their  own  develop- 
ment. 

The  universal  principles  that  govern  community  in 
things  are  perfectly  applicable  to  the  Gulf  of  Fonseca, 
from  the  international  point  of  view.  Community  is  not 
common  in  the  relations  among  nations,  but  it  is  not  an 
inconceivable  or  an  isolated  fact.  "In  public  law,"  says 
Heffeter,  "there  are  certain  acts  and  relations  which, 
independently  of  agreements,  and  in  a  manner  analogous 
to  the  quasi-contracts  of  civil  law,  produce  effects  similar 
to  those  arising  from  treaties.  (3).  Of  an  accidental 
community  (communio  rei  vel  juris),  in  a  case  wherein  a 
country  belongs  at  once  to  various  states  or  sovereignties, 
or  in  the  event  of  an  acquisition  of  a  thing  in  common  over 
which  the  dispositions  of  the  civil  laws  of  a  single  country 
are  not  applicable.  In  such  cases  recourse  must  be  had  to 
principles  heretofore  explained  relating  to  treaties  of 
association,  which  principles  are :  that  of  equality  of  rights 
and  obligations,  at  least  where  a  portion  shall  have  been 
previously  stipulated ;  that  of  free  enjoyment  of  a  thing  by 
each  coparcener  with  a  proviso  against  mutual  injuries; 
and,  finally,  the  principle  that  forbids  the  disposal  of  a 


59 

thing  completely  without  the  consent  of  the  other  co- 
parceners, the  power  so  to  convey  being  limited  to  the 
portion  corresponding  to  each.  The  dissolution  of  a 
community  can  only  take  place  by  means  of  a  treaty  or 
accidentally. ' ' 

The  same  opinion  prevails  among  other  authorities,  such 
as  Fiore,  Bluntschli,  Perela,  Rivier,  E-  Nys,  and  the 
Bolivian  statesman  Federico  Diaz  Medina,  who  cites  the 
case  of  Prussia  and  Austria  when,  by  the  treaty  of  Vienna 
of  1864,  they  acquired  from  Denmark  an  undivided 
sovereignty  over  the  Duchies  of  Schleswig-Holstein,  and 
the  case  of  Chile  and  Bolivia,  who,  by  the  treaty  of  1876, 
recognized  their  reciprocal  and  definitive  territorial 
ownership  in  the  24th  parallel  of  latitude  and  at  the  same 
time  community  of  ownership  in,  and  the  right  to  exploit, 
the  guano  deposits  lying  between  the  23d  and  24th  parallels 
—an  agreement  that  was  superseded  by  the  treaty  of 
armistice  of  1884. 

Also  from  the  point  of  view  of  various  civil  laws,  among 
them  those  of  Central  America,  and  especially  those  of 
Nicaragua,  in  the  light  whereof  the  question  of  community 
in  the  Gulf  may  be  contemplated.  Article  1700  of  the 
Civil  Code  of  the  Republic  last  mentioned  gives  to  the 
coparcener  of  a  thing  held  in  common  full  ownership  over 
his  part,  together  with  its  emblements  and  profits, 
including  the  right  freely  to  sell,  grant  or  mortgage,  pro- 
vided no  right  personal  to  another  be  involved.  But 
naturally  that  power  should  be,  and  is  in  fact,  limited  by 
Article  1710,  which  provides: 

"No  coparcener  may  take  for  himself  or  give  to  a 
third  party  real  estate  held  in  common,  in  whole  or 
part,  in  usufruct  or  for  use,  habitation  or  rental  in  the 
absence  of  agreement  with  the  other  interested 
parties." 

A  conflict  of  meaning  is  apparent  here  which,  however, 
is  perfectly  explicable  by  an  error  of  the  copyist  as  shown 


6o 

by  a  comparison  of  the  Nicaraguan  article  with  Article 
399  of  the  Civil  Code  of  Spain,  which  served  as  a  model  for 
the  former.  The  latter  gives  the  same  power  provided 
in  the  other  but  prescribes  that  "the  effect  of  alienation  or 
mortgage,  with  respect  to  co-owners,  shall  be  limited  to 
the  portion  adjudicated  in  the  partition  on  the  extinction  of 
the  community."  The  article  of  the  Nicaraguan  Code 
omitted  the  complementary  and  conditional  proviso;  and 
proof  of  this  lies  in  the  fact  that,  in  spite  of  providing  for 
free  disposition  on  the -part  of  the  coparcener,  it  excepts 
the  personal  rights  to  usufruct,  use,  occupation  and 
leasing  which,  like  all  the  others,  are  subject  to  the  follow- 
ing rules  of  the  Nicaraguan  Code: 

"ARTICLE  1695. — Each  coparcener  may  make  use 
of  the  things  held  in  common,  provided  also  that  he 
use  them  for  the  usual  purposes  for  which  they  are 
destined,  and  that  such  use  be  not  against  the 
interests  of  the  community." 

"ARTICLE  1698. — None  of  the  coparceners  may 
make  any  change  in  the  thing  held  in  common,  even 
though  such  change  would  operate  to  the  advantage 
of  all,  in  the  absence  of  their  consent  thereto." 

"ARTICLE  1699. — The  agreement  of  the  majority 
of  the  coparceners  is  necessary  for  the  administration 
and  better  enjoyment  of  the  thing  held  in  common." 

Whereas:  The  High  Parties  Contestant  are  in  accord 
respecting  the  existence  of  the  zone  of  maritime  inspection 
in  the  Gulf  of  Fonseca,  wherein  the  States  exercise  the 
right  of  imperium  beyond  their  absolute  jurisdiction  over 
the  sea  for  purposes  fiscal  and  for  purposes  of  national 
security;  but  the  High  Party  Defendant  claims  that, 
because  an  unsurmountable  barrier  attributable  to  alien 
sovereignty  stands  in  the  way,  that  right  should  be  exer- 
cised on  the  high  sea  directly  opposite  the  respective 
coasts  of  the  several  countries,  and  not  to  the  right  and  left 
over  portions  of  the  territorial  sea  belonging  to  others, 


6i 

whereas  the  High  Party  Complainant  claims  that  that 
zone  exists  as  well  within  the  Gulf  as  without. 

The  Court  has  admitted  the  latter  claim  because  it  finds 
that  it  is  supported  by  Articles  2,13  (first  paragraph)  and 
1 6  of  the  Law  of  Navigation  and  Marine  of  the  Repub- 
lic of  El  Salvador,  which  read  as  follows : 

"ARTICLE  2. — Estuaries,  coves  and  bays  and  the 
contiguous  open  sea  to  a  distance  of  one  marine 
league,  measured  from  extreme  low  tide,  are  of 
national  ownership;  but  the  police  power,  for  pur- 
poses connected  with  the  country's  security  and  the 
enforcement  of  the  fiscal  laws,  extends  to  a  distance 
of  four  marine  leagues,  measured  from  extreme  low 
tide." 

"  ARTICLE  13. — The  territorial  sea  of  the  Republic 
is  divided  into  five  maritime  departments  as  fol- 
lows: 

"First. — The  Maritime  Department  of  La  Uni6n, 
comprising  the  Bay  of  Conchagua,  that  part  of  the 
Gulf  of  Fonseca  wherein  are  situated  the  Salvadorean 
islands,  and  the  territorial  sea  as  far  as  the  parallel 
of  the  eastern  mouth  of  the  San  Miguel  River." 

"ARTICLE  1 6. — All  officers  exercising  marine  com- 
mand will  enforce  the  nation's  police  power  over  the 
four  marine  leagues  mentioned  in  Article  2,  within  the 
limits  indicated  by  the  prolongations  of  the  parallels 
that  mark  out  the  respective  departments." 

From  the  above-quoted  provision  it  may  be  deduced 
without  effort  that  the  zone  of  inspection  should  be 
measured  in  the  same  manner  as  the  littoral  marine  league, 
that  is  to  say,  from  the  line  of  extreme  low  tide;  and,  as 
that  league,  according  to  the  principles  of  law,  must  be 
measured  in  connection  with  the  sinuosities  of  the  coast, 
so  also  that  zone,  which  is  a  prolongation  of  the  former, 
must  follow  the  same  direction.  The  fact  that  the  waters 
of  the  Gulf  belong  to  the  three  States  that  surround  them 
has  not  operated  to  prevent  the  existence  of  a  second  zone 
that  tends  to  protect  the  rights  of  each  State  with  respect 


62 

to  the  others,  under  regulations,  which,  as  the  publicist, 
Don  Andres  Bello,  says,  "are  concerned  more  immediately 
with  their  prosperity  and  well-being" ;  because,  considering 
their  present  political  organization,  the  States  contiguous 
to  the  Gulf  possess  among  themselves  rights  and  duties  of 
reciprocal  application  in  the  use  and  enjoyment  of  the 
non-littoral  waters,  and  because,  the  merchant  vessels  of  all 
nations  possessing,  as  they  do,  the  right  of  uso  inocente 
over  those  waters,  the  right  of  the  States  to  exercise  the 
police  power  and  powers  incident  to  national  security  and 
fiscal  matters  off  their  respective  coasts  is  correllative  to 
those  rights.  The  overlapping  that  would  result  from  con- 
tinuing the  prolongation  of  the  lines  towards  the  interior 
of  the  Gulf,  would  demonstrate  the  necessity  of  settling 
that  collision  of  interests  by  means  of  treaties  between  the 
respective  governments  and,  furthermore,  the  imperative 
necessity  of  avoiding  an  upsetting  of  the  situation  by  other 
acts  distinct  from  those  exercised  up  to  the  present  time 
with  the  reciprocal  acquiescence  of  the  co-owners  of  the 
Gulf. 

And  even  in  the  contrary  hypothesis — that  is,  assuming, 
as  claimed  by  the  High  Party  Defendant,  that  the  right  of 
imperium  can  be  exercised  directly  off  the  coast  only, 
taking  for  base  the  thirty-five  kilometer  line  from  Amapala 
Point,  in  El  Salvador,  to  Cosigiiina  Point,  in  Nicaragua, 
and,  therefore,  ignoring  the  question  of  the  right  of 
ownership  in  the  interior  of  the  Gulf — the  fact  remains 
that  the  non-littoral  waters  preserve  the  same  legal 
status  of  community  as  among  the  co-owners,  subject 
only  to  certain  fixed  restrictions  in  the  respective  laws  and 
regulations  concerning  use  by  outsiders.  That  claim  the 
Court  has  been  unable  to  admit,  because  the  obligatory 
character  possessed  by  the  Laws  of  Navigation  and 
Marine,  of  El  Salvador,  which  were  enacted  to  safeguard 
in  the  Gulf  the  rights  and  interests  of  the  Republic, 


63 

cannot  be  ignored,  and  because,  furthermore,  those  laws 
conform  to  the  generally  admitted  principles  of  inter- 
national law  in  regard  to  the  points  that  are  the  subjects 
of  those  special  provisions. 

Whereas:  The  legal  status  of  the  Gulf  of  Fonseca  having 
been  recognized  by  this  Court  to  be  that  of  a  historic  bay 
possessed  of  the  characteristics  of  a  closed  sea,  the  three 
riparian  States  of  El  Salvador,  Honduras  and  Nicaragua 
are,  therefore,  recognized  as  co-owners  of  its  waters, 
except  as  to  the  littoral  marine  league  which  is  the 
exclusive  property  of  each  and,  with  regard  to  the  co- 
ownership  existing  between  the  States  here  litigant,  the 
Court,  in  voting  on  the  fourteenth  point  of  the  question- 
naire, took  into  account  the  fact  that  as  to  a  portion  of  the 
non-littoral  waters  of  the  Gulf  there  was  an  overlapping  or 
confusion  of  jurisdiction  in  matters  pertaining  to  inspec- 
tion for  police  and  fiscal  purposes  and  purposes  of  national 
security,  and  that,  as  to  another  portion  thereof,  it  is  pos- 
sible that  no  such  overlapping  and  confusion  takes  place. 
The  Court,  therefore,  has  decided  that  as  between  El 
Salvador  and  Nicaragua  co-ownership  exists  with  respect 
to  both  portions,  since  they  are  both  within  the  Gulf; 
with  the  express  proviso,  however,  that  the  rights  pertain- 
ing to  Honduras  as  coparcener  in  those  portions  are  not 
affected  by  that  decision. 

Whereas:  In  regard  to  the  protest  addressed  by  the 
Government  of  Honduras  to  the  Government  of  El 
Salvador,  copy  of  which  has  been  brought  to  the  attention 
of  the  Court  in  this  case  by  His  Excellency  the  Minister  of 
Foreign  Relations  of  the  former  Government,  the  Court  can 
do  no  less  than  accord  to  it  the  full  effect  claimed  therefore 
by  that  high  officer  in  his  report  of  January  6,  1917,  to  the 
national  congress  of  his  country  concerning  the  conduct 
of  affairs  of  the  foreign  relations  branch  of  the  Executive 
power.  The  paragraphs  that  deal  with  this  subject  read 
as  follows : 


64 

"The  Government  of  Honduras,  although  it  dis- 
claimed a  purpose  to  oppose  in  any  manner  the  steps 
being  taken  by  the  sister  Republic  of  El  Salvador  in 
this  delicate  matter,  nevertheless  believed  it  to  be  its 
duty  to  protest,  and  did  protest,  against  the  allegation 
of  the  complaint  referred  to,  wherein  co-ownership 
in  all  of  the  waters  of  the  Gulf  of  Fonseca  is  claimed 
on  the  ground  of  the  status  of  community  among  the 
three  riparian  Republics  even  as  to  the  waters  con- 
tiguous to  the  coasts  and  islands  of  Honduras,  over 
which  extends  the  undisputed  sovereignty  of  the 
Republic  as  exclusive  owner  thereof,  and  in  which 
that  Republic  has  exercised,  and  now  exercises,  juris- 
diction, as  is  recognized  in  the  public  documents  of  the 
Government  of  El  Salvador  itself. 

"The  Government  is  of  the  opinion  that  whatever 
may  be  the  ultimate  conclusion  as  to  the  legal 
status  of  the  Gulf  of  Fonseca  outside  the  territorial 
waters,  co-ownership  over  those  waters  by  any  other 
republic  cannot  be  recognized  without  compromising 
the  integrity  of  the  territory  which  the  Constitution 
brings  under  the  safeguards  of  the  Powers  of  the 
State. 

"As  was  to  have  been  expected,  the  Government  of 
El  Salvador  took  the  protest  mentioned  into  con- 
sideration and  gave  to  this  Government  frank  and 
satisfactory  evidence  of  its  full  justification,  to  that 
end  accrediting  thereto  the  Confidential  Agent,  Dr. 
Don  Manuel  Delgado,  with  whom  an  adjustment  was 
signed,  which,  when  approved  by  the  Government  of 
El  Salvador,  will  put  an  end  to  the  differences  that 
have  arisen  and  safeguard  the  rights  of  thisRepublic. 

CHAPTER  III. 


Concerning  the  Establishment  of  a  Naval  Base. 

Whereas:  The  legal  status  of  the  Gulf  of  Fonseca 
as  an  historic  or  vital  bay,  having  already  been  established 
by  its  historical,  geographical  and  sociological  antecedents, 


65 

the  Court  will  now  proceed  to  examine  that  legal  status 
in  relation  to  the  stipulation  of  the  Bryan- Chamorro 
treaty  which  refers  to  a  naval  base  and  which  reads  as 
follows : 

"ART.  II.  To  enable  the  Government  of  the  United 
States  to  protect  the  Panama  Canal  and  the  proprie- 
tary rights  granted  to  the  Government  of  the  United 
States  by  the  foregoing  article,  and  also  to  enable 
the  Government  of  the  United  States  to  take  any 
measure  necessary  to  the  ends  contemplated  herein, 
the  Government  of  Nicaragua  hereby  leases  for  a 
term  of  99  years  to  the  Government  of  the  United 
States,  the  islands  in  the  Caribbean  Sea  known  as 
Great  Corn  Island  and  lyittle  Corn  Island;  and  the 
Government  of  Nicaragua  further  grants  to  the 
Government  of  the  United  States  for  a  like  period  of 
99  years  the  right  to  establish,  operate,  and  main- 
tain a  naval  base  at  such  place  on  the  territory  of 
Nicaragua  bordering  upon  the  Gulf  of  Fonseca  as 
the  Government  of  the  United  States  may  select. 
The  Government  of  the  United  States  shall  have  the 
option  of  renewing  for  a  further  term  of  99  years  the 
above  leases  and  grants  upon  the  expiration  of  their 
respective  terms,  it  being  expressly  agreed  that  the 
territory  hereby  leased  and  the  naval  base  which  may 
be  maintained  under  the  grant  aforesaid  shall  be 
subject  exclusively  to  the  laws  and  sovereign  author- 
ity of  the  United  States  during  the  terms  of  such 
lease  and  grant  and  of  any  renewal  or  renewals 
thereof." 

The  treaty,  then,  conveys  a  concession,  in  the  form  of  a 
renewable  lease,  for  the  exploitation  and  maintenance  of 
a  naval  base  at  a  point  on  Nicaraguan  territory  in  the  Gulf 
of  Fonseca,  to  be  designated  by  the  Government  of  the 
United  States;  and,  considering  the  legal  status  of  that 
Gulf  and  the  extremely  valuable  interests  possessed  by 
El  Salvador  therein,  it  is  proper  here  to  determine  whether 
the  establishment  of  a  naval  base  at  any  point  on  the  bor- 


66 

ders  of  that  closed  sea  would  menace  the  security  of  that 
Republic  and  endanger  its  national  integrity. 

A  distinguishing  characteristic  of  all  closed  or  terri- 
torial bays  is,  in  the  opinion  of  the  text-writers,  the  ex- 
clusive possession  enjoyed  in  its  waters  by  the  states 
that  own  its  coasts  and  which  is  exercised  for  the  purpose  of 
safeguarding  the  rights  of  territorial  defence  and  the  rights 
that  relate  to  their  vital  economic  and  commercial  inter- 
ests: The  sovereigns  of  the  territory  extend  the  exercise 
of  their  imperium  beyond  the  maritime  littoral  in  such  a 
bay  and  extend  their  protection  throughout  the  waters 
comprised  within  the  bay  which  nature  entrusts  to  their 
moral  and  material  domination  as  though  those  waters 
came  under  their  complete  ownership. 

But  without  these  circumstances,  it  would  still  be 
necessary  to  hold  that  the  establishment  of  a  naval  base 
inside  the  Gulf  would  be  a  menace  to  the  Republic  of 
El  Salvador,  even  though  that  base  were  located  on 
the  maritime  littoral  of  the  Republic  of  Nicaragua,  since 
though  the  Government  of  that  Republic  may  never, 
during  its  international  life,  have  performed  any  official 
act  that  might  have  implied  a  menace  to  the  Salvadorean 
nation. 

The  function  of  sovereignty  in  a  state  is  neither  un- 
restricted nor  unlimited.  It  extends  as  far  as  the  sovereign 
rights  of  other  states.  Bluntschli  tells  us  that ' '  sovereignty 
does  not  imply  absolute  independence  or  absolute  liberty.  " 
"States,"  he  says,  "are  not  absolute  beings  but  entities 
whose  rights  are  limited";  and  he  adds  that  a  state  may 
not  claim  more  than  such  independence  and  liberty  as  is 
compatible  with  the  necessary  organization  of  humanity, 
with  the  independence  of  other  states,  and  with  the  ties 
that  bind  states  together.  (Nys,  Le  Droit  International, 
Vol.  I,  p.  380.) 


6? 

This  doctrine  takes  on  added  moral  and  legal  force 
when  applied  to  such  Central  American  countries  as 
El  Salvador,  Honduras  and  Nicaragua,  because  in  each 
independence  and  sovereignty  with  respect  to  the  Gulf  of 
Fonseca  are  limited  by  the  concurrence  of  rights  which 
carries  with  it,  as  a  logical  postulate,  a  reciprocal  limita- 
tion. 

To  invoke  the  attributes  of  sovereignty  in  justification 
of  acts  that  may  result  in  injury  or  danger  to  another 
country  is  to  ignore  the  principle  of  the  independence 
of  states  which  imposes  upon  them  mutual  respect  and 
requires  them  to  abstain  from  any  act  that  might  involve 
injury,  even  though  merely  potential,  to  the  fundamental 
rights  of  the  other  international  entities  which,  as  in  the 
case  of  individuals,  possess  the  right  to  live  and  develop 
themselves  without  injury  to  each  other;  and,  if  those 
principles  be  deep-rooted  in  international  life,  they  take 
on  a  greater  importance  when  applied  to  Central  American 
countries,  which  on  certain  occasions  have  incorporated 
those  postulates  as  basic  principles  of  their  public  law. 

The  Assembly  of  Plenipotentiaries  that  met  at  this 
Capital  [of  Costa  Rica]  in  1906  fixed  as  the  point  of  de- 
parture for  the  discussions  that  preceded  the  General 
Treaty,  a  solemn  Declaration  of  Principles  consecrated 
by  the  Governments  as  canons  of  Central  American 
international  public  law ;  among  these  is  the  following : 

' 'II. — The  solidarity  of  the  interests  that  relate  to 
the  independence  and  sovereignty  of  Central  America, 
considered  as  a  single  nation." 

That  declaration,  like  the  others  adopted  at  the  same 
time,  is  of  high  moral  value,  because  in  the  protocols 
adopted  at  the  Conferences  of  Washington  it  appears 
that  the  stipulation  of  the  Treaty  of  San  Jos£  served  as 
the  cementing  basis  of  the  system  of  law  created  in  the 
treaties  there  subscribed  in  1907  and  now  in  force. 


68 

A  reciprocal  duty  is  entailed  upon  the  Governments 
of  El  Salvador  and  Nicaragua  to  guard  those  supreme 
interests  which  are  confided  to  the  custody  of  all  the 
sister  countries;  for,  were  that  not  so,  it  would  be  enough 
for  the  Court,  in  order  to  declare  the  naval  base  granted 
in  the  Bryan-Chamorro  treaty  to  be  a  menace  to  El  Sal- 
vador's security  and  vital  interests,  to  take  into  considera- 
tion the  fact  that  a  naval  base  was  stipulated  for  in  the 
the  neighborhood  of  the  Republic  of  El  Salvador,  the 
establishment  and  development  of  which  would  make 
necessary  the  use  of  common  waters  in  the  Gulf  of 
Fonseca  and  the  construction  of  engineering  works,  the 
accumulation  of  war  material  and  the  installation  of 
barracks  in  places  which,  because  of  the  topography  of 
the  land,  would  completely  dominate  Salvadorean  terri- 
tory. 

In  the  opinion  of  the  Court,  the  Agadir  case  is  perfectly 
applicable  to  the  argument  maintained  by  the  High  Party 
Complainant.  It  matters  not  that  in  that  case  the  par- 
ties who  claimed  that  their  rights  were  "menaced"  were 
great  military  powers.  The  proposition  was  there  adopted 
as  a  fundamental  principle  of  public  law  that  all  states 
are  naturally  equal  and  that  they  are  under  the  same  obli- 
gations and  enjoy  the  same  rights.  "The  relative  magni- 
tude," says  Sir  William  Scott,  referring  to  sovereign  states, 
"creates  no  distinction  of  right,  and  any  difference  that 
may  be  claimed  in  respect  to  that  basis  must  be  considered 
as  a  usurpation."  (Calvo,  Derecho  International,  p.  197.) 

Similar  doctrines  have  been  put  forth  on  various  occa- 
sions by  North  American  publicists  in  discussing  the 
absolute  respect  due  to  nations  however  feeble  and 
diminutive  they  may  be. 

The  illustrious  former  Secretary  of  State,  Mr.  Root, 
at  the  Pan-American  Congress  held  at  Rio  de  Janeiro, 
said: 


69 

"We  deem  the  independence  and  equal  rights  of  the 
smallest  and  weakest  member  of  the  family  of  nations 
entitled  to  as  much  respect  as  those  of  the  greatest 
empire,  and  we  deem  the  observance  of  that  respect 
the  chief  guaranty  of  the  weak  against  the  oppression 
of  the  strong." 

Those  declarations  were  confirmed  by  their  author,  in 
1916,  at  the  Pan-American  Scientific  Congress. 

At  the  memorable  Conference  at  the  Hague  in  1907, 
the  principle  of  the  legal  equality  of  all  states  was  adopted 
in  obligatory  form: 

"Another  glorious  achievement  that  can  never  be 
denied  to  the  world  reunion  of  1907,  lies  in  the  fact 
that  it  made  secure  against  all  attack  the  great  prin- 
ciple of  the  legal  equality  of  all  nations.  A  certain 
chapter  of  the  proceedings  of  that  great  conference 
shows  clearly  a  more  or  less  deliberate  attempt  to  im- 
pose, by  the  rules  of  law,  on  the  weak  the  sovereignty 
of  the  strong,  by  creating  original  means  of  interven- 
tion under  the  disguise  of  an  independent  jurisdiction. 

"The  clamor  against  those  proposals  was  great  and 
the  opposition  positive  and  successful.  Rather  than 
permit  so  radical  a  change  in  the  society  of  nations 
and  undo,  in  1907,  the  work  consecrated  by  four 
centuries  of  world  struggle,  the  majority  of  the 
nations,  great  as  well  as  small,  would  have  broken 
up  the  Conference  and  brought  about  a  turbulent 
dissolution."  (La  Segunda  Conferencia  de  la  Paz,  by 
Don  Antonio  Bustamante  y  Sirven.) 

Consequently  the  considerations  put  forth  on  this  point 
by  counsel  for  the  Government  of  Nicaragua  are  ineffec- 
tual when  he  points  out  that  in  the  Agadir  case  great 
military  powers  were  involved,  among  which  the  danger 
of  collision  and  effective  war  is  a  constant  menace, 
whereas  in  the  case  of  the  naval  base  in  the  Gulf  of 
Fonseca,  small  adjacent  countries  only  are  involved,  as 
to  which  neither  clashes  nor  rivalries  with  the  United 
States  are  to  be  thought  of. 


70 

The  history  of  Central  America  shows  that  the  principle 
of  nationalities  has  always  been  defended  by  the  Public 
Power ;  and  these  were  not  animated  by  a  feeling  of  rivalry 
or  fear,  but  by  obedience  to  the  sociological  law  that 
governs  the  harmonious  development  of  ethnical  unities 
and  brings  about  their  cohesion. 

Public  documents*  demonstrate  that  in  the  year  1854, 
in  view  of  the  fear  that  the  Honduran  Government 
would  alienate  Tigre  Island,  in  the  Gulf  of  Fonesca, 
and  turn  it  over  to  a  foreign  government,  Guatemala, 
Costa  Rica  and  El  Salvador  lodged  a  formal  protest  with 
the  Honduran  Department  of  Foreign  Relations — 

"The  matter  in  question  compromises,  not  only 
the  nationality  and  independence  of  Honduras,  but 
that  of  all  Central  America,"  said  the  Guatemalan 
Minister  Sefior  Aycinena,  in  his  note. 

The  Costa  Rican  Minister,  Sefior  Calvo,  after  certain 
pertinent  reflections,  stated  that : 

''The  fact  denounced  by  the  official  press  of  El 
Salvador  and  communicated  to  this  Department 
by  the  Foreign  Office  at  Cojutepeque  that  Tigre 
Island  had  been  conveyed  to  Mr.  Follin,  who  held 
himself  forth  as  the  American  Agent,  and  the  equally 
manifest  intention  of  selling  other  parts  of  Central 
American  territory,  bears  the  character  of  anti- 
nationalism  that  affects  the  security  of  this  part  of 
the  continent  and  forces  the  neighboring  states  to 
intervene  in  opposition  to  contracts  that  compromise 
their  own  future  integrity  as  well  as  that  of  the  con- 
tracting state. 

"As  a  government,  that  of  Honduras  is  as  inde- 
pendent as  any  other  and  may  exercise  its  sovereignty 
and  modify  it  as  it  pleases;  but,  as  a  member  of  the 

"Contained  in  a  study  entitled:  "La  Venta  (sale)  de  la  Isla  del  Tigre  en 
1854,"  by  Dr.  David  Resales,  Jr.,  in  which  the  author  places  the  official 
documents  that  relate  to  these  facts  at  the  disposition  of  the  Government 
of  El  Salvador. 


society  of  Central  America,  title  to  which  it  has  so 
often  descanted  upon  in  these  later  times,  it  has  no 
right  to  exercise  its  sovereignty  at  the  cost  of  the 
whole,  of  which  it  is  no  more  than  a  small  part." 

His  Excellency  Minister  G6mez,  in  his  turn,  said: 

"The  Government  of  El  Salvador  believes  that 
the  transfer  of  our  coasts  or  islands  into  foreign 
hands  imports  imminent  or  remote  loss  of  the  inde- 
pendence of  those  countries,"  etc. 

The  documents  referred  to  also  show  that  to  those 
protests  the  Government  of  Honduras  replied  by  declaring 
that  the  fears  suggested  were  unfounded;  but  that, 
for  the  purpose  of  avoiding  the  anticipated  danger, 
it  had,  on  a  date  prior  to  the  protests,  issued  a  declaration 
making  clear  its  purpose,  as  follows: 

"That  the  State  was  not  alienating,  and  could  not 
alienate,  the  rights  of  ownership  and  sovereignty 
that  it  possessed  over  the  said  island." 

This  attitude  of  the  Governments  of  Central  America 
in  support  of  the  principle  of  nationalities  is  not  unique 
on  the  American  continents.  It  was  also  asserted  by 
the  Government  of  the  Republic  of  Chile  when  it  feared 
that  the  Government  of  Ecuador  would  convey  the 
Galapagos  Islands  to  the  United  States. 

The  diplomatic  steps  taken  in  that  matter,  in  the  year 
1869,  gave  rise  to  the  protocol  parleys  that  culminated  in 
the  express  declaration  of  the  Government  of  Ecuador 
that  such  alienation  was  not  intended;  and,  alluding  to 
that  important  incident  of  South  American  diplomacy, 
Don  Aurelio  Bascunan  Montes  said,  in  his  valuable 
Misceldnea  histdrico-diplomdtica  presented  to  the  Fourth 
Scientific  Congress  (First  Pan-American) : 

"The  Minister  of  Foreign  Relations,  Sefior  Amuna- 
tegui,  reiterated  his  accord  with  the  facts  set  forth, 


72 

that  constituted  a  guarantee  of  the  correct  and  loyal 
procedure  of  a  government  bound  to  Chile  by  so 
many  ties,  and  that  he  felt  that  he  might  be  excused 
from  giving  further  reasons,  since,  according  to  the 
declarations  of  the  Ecuadorian  Minister  Plenipoten- 
tiary, there  was  no  ground  for  belief  that  the  Govern- 
ment of  that  sister  Republic  had  any  idea  of  entering 
into  such  a  transaction. 

"Such  is  the  extract  from  the  Flores-Amuna- 
tegui  protocol  conference  of  December  31,  1869. 

"This  was  not  the  first  time  that  the  Galapagos 
matter  had  occupied  the  attention  of  the  Pacific 
Republics. 

"Minister  Flores,  in  the  course  of  his  protocolized 
and  detailed  declaration  of  1869,  alludes  to  the 
mission  of  the  Chilean  Minister,  Don  Jose  Francisco 
Gana  to  Quito,  in  the  year  1855,  to  settle  that  same 
question,  a  mission  that  was  of  the  greatest  impor- 
tance, judging  from  the  following  paragraph,  which 
President  Don  Manuel  Montt  used  in  his  inaugural 
address  before  the  legislative  body  in  1856: 

"'The  extraordinary  mission  sent  to  Ecuador  in 
the  beginning  of  last  year  has  returned  home  after 
faithfully  carrying  out  the  views  of  the  Government. 
The  Convention  of  November  20,  1854,  referring 
to  the  Galapagos  Islands,  has  remained  without 
effect.  The  Ecuadorian  Government,  with  dignity 
and  caution  has  dissipated  the  anxieties  caused  among 
the  Republics  of  the  continent  by  certain  stipulations 
of  that  Convention." 

The  antecedents  invoked  show  that  the  proclamation 
of  the  Monroe  Doctrine  in  the  year  1823  did  not  prevent 
the  American  countries  from  excercising  the  unavoidable 
duty  of  looking  after  the  integrity  and  defence  of  their 
territories,  for  that  celebrated  declaration,  unquestion- 
ably of  the  highest  interest,  consecrates  the  express  recog- 
nition of  "the  free  and  independent  condition  which  they 
(the  American  continents)  have  assumed  and  maintain"; 
but  it  does  not  involve  an  international  tutelage  that 


73 

confides  the  defense  of  the  continent  against  all  attempts 
at  colonization — in  a  unique  and  exclusive  form — to 
the  military  and  naval  power  of  the  United  States,  to 
the  exclusion  of  and  ignoring  the  duties  that  pertain  to 
the  other  Latin- American  Republics.  That  proposition 
does  not  comport  with  the  solemn  declarations  of  the 
statesmen  of  the  United  States,  repeated  on  many  memo- 
rable occasions,  and  much  less  could  it  constitute  an 
obligatory  tie  for  the  Republic  of  El  Salvador,  which  is 
not  bound  in  contractual  form  to  recognize  even  an  authen- 
tic interpretation  of  the  doctrine  of  President  Monroe. 
Whether  the  concession  and  operation  of  a  naval  base 
may  be,  as  maintained  by  counsel  for  the  High  Party 
Defendant,  for  the  greater  welfare,  security  and  guaranty 
of  the  Isthmian  countries,  or  whether  it  signifies,  as 
alleged  by  the  High  Party  Complainant,  a  cause  for 
vexation  and  worry,  and  a  source  of  danger  to  its  auton- 
omy, is  a  question  of  purely  political  portent  that  con- 
flicts with  the  tendencies  or  plans  of  the  Government  of 
the  United  States,  an  international  entity  not  subject 
the  jurisdiction  of  this  Court.  It  is  enough  for  its  jurid- 
ico-arbitral  finality  to  consider,  in  its  true  weight,  the 
moral  obligation  also  imposed  by  treaties  and  express 
laws  to  maintain  the  integrity  of  Nicaraguan  territory 
and  to  preserve  its  republican  system  free  from  all  foreign 
sovereignty — however  noble  and  disinterested  it  may  be — 
in  order  to  estimate  the  menace  to  the  security  of  El 
Salvador  resulting  from  the  establishment  of  a  naval 
base  in  the  Gulf  of  Fonseca  provided  for,  not  in  antici- 
pation of  a  state  of  peace,  but  in  anticipation  of  a  state  of 
war  which,  should  it  come,  would  convert  the  maritime 
and  land  territory  of  that  Republic  into  a  field  of  military 
operations  subject  to  all  the  attendant  risks  and  havoc, 
besides  rendering  nugatory  El  Salvador's  duties  of  neutral- 
ity to  the  whole  extent  specified  in  the  Hague  Convention. 


74 

In  support  of  the  Court's  conclusion  that  the  establish- 
ment of  a  naval  base  at  any  point  on  that  interior  and 
closed  sea  would  menace  the  natural  security  of  El  Sal- 
vador, a  great  many  historic  precedents  could  be  invoked, 
and  a  needlessly  prolix  collation  made  of  the  uniform  doc- 
trines laid  down  by  the  publicists;  but  the  Court  does  not 
think  that  this  is  necessary  in  a  matter  so  clear  in  the 
light  of  the  principles  of  science.  It  confines  itself, 
therefore,  in  concluding  this  section,  to  quoting  two 
principal  conclusions  reached  by  the  Institute  of  Interna- 
tional Law  at  its  first  session  in  Washington  on  the  6th 
of  January,  1916,  on  the  occasion  of  the  Solemn  Declara- 
tion of  the  Rights  and  Duties  of  Nations,  as  follows : 

"I. — Every  nation  possesses  the  right  to  exist  and 
to  protect  and  preserve  its  existence;  but  that  right 
does  not  imply  the  power,  nor  justify  any  act,  whereby 
a  state,  in  order  to  protect  and  preserve  its  existence, 
may  commit  wrongful  acts  against  innocent  states 
that  may  be  doing  no  harm." 

"V. — Every  nation  that  possesses  a  right  con- 
formable with  the  law  of  nations  also  has  the  right 
to  have  it  protected  and  respected  by  all  nations, 
because  right  and  duty  are  co-relative;  and  where- 
ever  a  right  exists  in  one,  all  are  bound  to  observe  it." 

CHAPTER  IV. 

Concerning  the  Primordial  Interests  of  El  Salvador  as  a 
Central  American  State. 

Whereas:  It  is  also  unquestionable  that  the  Bryan- 
Chamorro  treaty  violates  primordial  interests  of  the 
Republic  of  El  Salvador  as  a  Central  American  State  and 
that  that  moral  violation  results  from  the  fact  that  the 
Government  of  Nicaragua  ceded  to  the  United  States 
an  integral  part  of  Nicaragua's  territory  when  it  con- 
veyed a  naval  base  in  the  Gulf  of  Fonseca  and  leased 


75 

Great  Corn  Island  and  Little  Corn  Island  in  the  Atlantic, 
turning  those  territories  over  to  the  complete  domination 
of  the  sovereignty  of  the  concessionary  nation. 

By  virtue  of  the  beautiful  traditions  of  history  the  peo- 
ples of  the  Central  American  Isthmus  make  a  moral  whole, 
and,  although,  at  present  divided  into  five  independent 
States,  they  have  not  broken  the  strong  ties  that  call 
upon  them,  now  as  well  as  formerly,  to  form  a  single 
nationality. 

Nicaragua  and  El  Salvador  cannot  consider  themselves 
as  two  international  entities  bound  by  mere  ties  of  cour- 
tesy. No ;  the  two  countries  together  formed  part  of  the 
Captaincy-General  of  Guatemala  subject  to  the  dominion 
of  the  Spanish  monarchy;  later  they  burst  forth  into  a 
life  of  freedom  by  the  same  solemn  declaration  of  indepen- 
dence, and  remained  constituent  parts  of  the  Federal 
Republic  of  the  Center  of  America  until  the  year  1839. 
Since  that  date  the  two  countries  have  taken  part  in  vari- 
ous attempts  at  union  that  culminated,  in  the  year  1898, 
in  the  appearance  of  the  Greater  Republic  of  Central 
America. 

Their  political  constitutions  have  always  declared 
that  the  two  countries  are  disintegrated  parts  of  the 
Central  American  Republic  and  that  they  recognize 
the  necessity  of  a  return  to  the  union.  These  repeated 
declarations  cannot  be  interpreted  as  void  of  meaning, 
for  they  are  a  part  of  the  fundamental  codes,  the  most 
important  organic  acts  of  two  peoples,  laying  down  the 
basic  principles  for  the  regulation  of  their  lives  and  their 
tendencies. 

On  the  other  hand,  it  is  not  true  that  the  Republic  of 
Nicaragua,  in  its  present  constitution,  adopted  in  1912, 
failed  to  declare — and  merely  as  a  simple  aspiration — the 
longing  of  the  Nicaraguan  people  to  see  reborn  the  Re- 
public of  Central  America.  Article  II  of  that  political 
constitution  reads  as  follows: 


76 

"Sovereignty  is  one  inalienable  and  imprescrip- 
tible and  resides  essentially  in  the  people,  from  whom 
the  functionaries  appointed  by  the  Constitution 
and  laws  derive  their  powers.  Consequently,  no 
pacts  or  treaties  may  be  entered  into  that  are  in 
opposition  to  the  independence  and  integrity  of  the 
nation  or  that  in  any  way  affect  its  sovereignty, 
save  those  that  tend  toward  the  union  of  one  or  more 
of  the  Republics  of  Central  America." 

The  Court  is  of  opinion  that  the  above  proviso  consti- 
tutes the  expression  of  the  national  sentiment  of  Nicaragua 
in  regard  to  the  reconstruction  of  the  old  Central  American 
State,  because  for  that  purpose  only  does  its  sovereign  will 
consent  to  acts  that  affect  the  sovereignty  or  integrity  of 
the  nation. 

It  should,  therefore,  be  understood  that  every  dismem- 
berment of  territory,  even  though  in  the  form  of  a  lease, 
violates  primordial  interests  of  El  Salvador  as  a  Central 
American  people,  above  all  in  respect  of  those  places 
in  which  both  States  have  interests  in  common  and  in 
solidarity. 

CHAPTER  V. 

Violation  of  Articles  II  and  IX  of  the  General  Treaty  of 
Peace  and  Arnity. 

Whereas:  The  Court  is  of  opinion  that  article  II  of 
the  Bryan-Chamorro  treaty  is  violative  of  Articles  II 
and  IX  of  the  Treaty  of  Peace  and  Amity  entered  into  by 
the  Republics  of  Central  America.  The  text  of  Article 
II  of  the  last-named  treaty  reads  as  follows : 

"  Desiring  to  secure  in  the  Republics  of  Central 
America  the  benefits  which  are  derived  from  the 
maintenance  of  their  institutions,  and  to  contribute 
at  the  same  time  in  strengthening  their  stability  and 
the  prestige  with  which  they  ought  to  be  surrounded, 
it  is  declared  that  every  disposition  or  measure  that  may 


77 

tend  to  alter  the  constitutional  organization  in  any  of 
them  is  to  be  deemed  a  MENACE  to  the  peace  of  said 
Republics." 

The  High  Parties  Litigant  do  not  agree  respecting  the 
interpretation  and  scope  of  that  international  pact. 
The  High  Party  Compainant  maintains  that  by  the 
text  of  that  provision  the  five  States  agree  not  to  alter 
in  any  form  their  constitutional  order,  because  such 
alteration  would  be  considered  by  all  and  each  of  them 
as  a  menace  to  their  security  and  derogatory  to  that 
prestige  that  should  surround  the  institution  under  which 
we  are  governed.  The  High  Party  Defendant,  on  the 
contrary,  gives  it  as  its  opinion  that  the  provision  has 
no  other  legal  purpose  than  to  inhibit  such  action  on  the 
part  of  a  Central  American  State  as  would  redound  to 
the  prejudice  of  the  constitutional  order  in  any  of  the 
others.  The  measures  thus  prohibited  are  not  those 
dictated  by  a  country  for  the  conduct  of  its  proper  life; 
they  are  such  as  might  be  adopted  by  another  State  for 
the  alteration  of  the  constitutional  order. 

Pervading  the  letter  and  spirit  of  Article  II,  now  under 
examination,  is  a  thought  of  capital  importance:  the 
agreement  to  maintain  peace  in  Central  America,  and, 
as  a  means  for  the  realization  of  that  main  purpose, 
the  observance  of  the  institutions  and  the  obligation  to 
preserve  inalterable  the  constitutional  order.  All  agen- 
cies, measures,  elements  or  circumstances  that  alter  that 
constitutional  order,  whether  arising  from  without  or  within 
that  State  whose  constitutional  order  might  thereby  be 
disturbed,  must,  therefore,  be  logically,  considered  as 
prohibited.  And  in  that  sense  it  would  be  purposeless 
to  discuss  what  is  understood  by  constitutional  order: 
whether  it  be  the  maintenance  of  the  democratic  repre- 
sentative system  of  government  in  its  well-known  division 
of  power,  or  the  harmonious  functioning  of  those  organisms ; 


78 

or  whether  that  order,  in  the  language  of  the  treaty, 
comprises  also  the  phenomena  of  the  relation  between 
the  signatory  States,  since  it  is  unquestionable  that 
under  the  principles  of  public  law  there  is  an  alteration 
of  constitutional  order — in  perhaps  its  most  serious  and 
transcendental  form — when  a  state  supplants,  in  all  or 
part  of  the  national  territory,  its  own  sovereignty  by  that 
of  a  foreign  country  and  thereby,  from  that  moment, 
overthrows  its  own  laws  in  order  that  those  of  the  con- 
cessionary State  may  govern  therein. 

In  the  sphere  of  principles  the  excercise  of  the  public 
auctoritas,  of  imperium  or  of  jurisdictio,  on  the  part  of 
the  foreign  sovereignty  fundamentally  alters  the  normal 
life  of  the  nation,  because  national  territory  and  its  exclu- 
sive possession  are  indispensable  elements  of  sovereignty. 

The  Government  of  Nicaragua,  in  infringing  a  consti- 
tutional standard — such  as  that  which  requires  the  main- 
tenance of  territorial  integrity — has  consummated  an 
act  that  menaces  the  Republic  of  El  Salvador,  which  is 
interested  and  obligated  by  the  Treaties  of  Washington 
to  maintain  the  prestige  of  the  public  institutions  of 
Central  America. 

The  application  of  those  principles  to  the  present 
discussion  shows  clearly  that  the  five  Central  American 
States,  by  operation  of  the  system  of  law  created  in  virtue 
of  the  treaties  concluded  at  Washington  in  1907,  solemnly 
agreed  to  save  harmless  their  sovereign  power  and  their 
autonomous  systems,  within  the  rule  of  strict  legal 
relation  which  they  are  in  duty  bound  to  adhere  to  among 
themselves — this  for  the  evident  purpose  of  preserving 
those  inalienable  privileges  for  the  work  of  political  unity 
to  which  they  aspire  and  which  is  so  insistently  safeguarded 
in  those  memorable  pacts. 

Article  II  of  the  Bryan-Chamorro  treaty  also  infringes 
Article  IX  of  the  General  Treaty  of  Peace  and  Amity 


79 

in  force  among  the  Republics  of  Central  America  because 
it  provides  that  ''the  territory  hereby  leased  and  the 
naval  base  which  may  be  maintained  under  the  grant 
aforesaid  shall  be  subject  exclusively  to  the  laws  and 
sovereign  authority  of  the  United  States." 

The  United  States  could,  therefore,  concede  to  the 
vessels  of  Nicaragua,  in  the  waters  that  remained  under 
her  sovereignty,  all  the  exemptions,  immunities  and 
privileges  that  they  might  please  to  bestow  upon  such 
vessels;  but  Nicaragua  could  not  ask  that  similar  con- 
cessions be  extended  to  the  vessels  of  the  other  Central 
American  countries.  The  United  States  have  the  power 
to  disrupt  the  equality  of  treatment  accorded  to  all  the 
vessels  of  the  signatory  countries  by  Article  IX  of  the 
Treaty  of  Peace  and  Amity;  and  Nicaragua,  by  the 
voluntary  act  of  her  Government,  has  incapacitated 
herself  from  complying  with  what  was  agreed  to.  It 
is  true  that  nothing  prevents  that  Republic  from  bestow- 
ing any  rights  or  imposing  any  charges  upon  its  own 
vessels  and  the  vessels  of  the  other  signatory  countries; 
but  this  on  a  footing  of  perfect  equality,  and  in  such 
solemn  manner  that  no  difference  whatsoever  could  be 
made  between  a  Nicaraguan  vessel  and  any  other  Central 
American  vessel.  Nicaragua,  in  transferring  her  adjacent 
seas  to  the  ownership  and  sovereignty  of  a  foreign  nation, 
not  only  as  to  her  coastal  mainland  on  the  Gulf  of  Fon- 
seca,  but  as  to  the  so-called  Corn  Islands  in  the  Atlantic, 
has  surrendered  all  power  to  enact  laws  and  regulations 
for  her  own  vessels,  and,  therefore,  to  control,  with 
equality  in  laws  and  regulations,  the  vessels  of  the  other 
Central  American  States. 

The  Court  has  no  hesitation  in  affirming  that  the 
Bryan-Chamorro  treaty,  which  contains  no  limitation 
or  reserve  in  that  respect,  but  which  rather  avoids  ex- 
pressing the  fact  that  in  the  leased  territory  and  waters 


8o 

the  laws  and  sovereign  authority  of  the  United  States 
alone  will  govern,  places  in  jeopardy  what  the  Republic 
of  El  Salvador  acquired  in  Article  IX  of  the  General 
Treaty  of  Peace  and  Amity,  since  it  leaves  them  dependent 
upon  a  foreign  sovereignty  that  is  under  no  obligation 
to  recognize  or  respect  them. 

CHAPTER  VI. 

Concerning  the  Intervention  and  Consent  of  El  Salvador 
and  the  Obligation  of  the  Nicaraguan  Government 
to  Re-establish  and  Maintain  the  Status  Quo  Ante. 

Whereas:  The  Government  of  Nicaragua,  being  bound 
by  solemn  agreements  to  the  Government  of  El  Salvador 
to  maintain  unchanged  the  constitutional  order  and  the 
full  exercise  of  the  perfect  rights  that  have  been  mutually 
recognized  in  the  General  Treaty  of  Peace  and  Amity, 
the  ceding  Government  could  not,  without  the  authori- 
zation and  consent  of  El  Salvador  grant  a  naval  base 
in  the  Gulf  of  Fonseca,  impressed  as  it  is  with  common 
ownership  pertaining  to  three  co-sovereigns,  since  none 
of  them  could  properly  dispose  of  its  rights  independently 
without  affecting  those  of  the  other  sovereigns,  in  view 
of  the  status  of  community  in  which  the  Gulf  has  been 
and  is  held,  thanks  to  the  universal  principle  handed 
down  by  Roman  law  and  faithfully  observed  in  modern 
law,  that  coparceners  may  not  perform  any  act  disposing 
of  a  thing  possessed  in  common  except  jointly  or  with 
the  consent  of  all. 

The  absence  of  that  joint  will  is  equivalent  to  the  omis- 
sion of  an  empowering  jormality,  since  the  Government  of 
Nicaragua  lacks  the  legal  capacity  to  alter  by  itself  the 
status  jure  existing  in  the  Gulf  of  Fonseca;  and  hence  is 
born  the  right  of  the  High  Party  Complainant  to  hold 
that  the  Bryan-Chamorro  treaty  violates  its  rights. 


8i 

Whereas:  As  a  logical  consequence  of  the  violation 
of  rights  claimed  by  the  Government  of  El  Salvador  and 
recognized  by  this  tribunal,  the  Government  of  Nicaragua 
is  impressed  with  the  obligation  to  take  all  possible  means 
sanctioned  by  international  law  to  re-establish  and 
maintain  the  legal  status  that  existed  between  the  two 
countries  prior  to  the  conclusion  of  the  Bryan-Chamorro 
treaty. 

It  is  clear  that  under  the  principles  of  international 
law  and  the  previous  stipulations  agreed  to  hi  the  Treaties 
of  Washington,  the  High  Party  Defendant  was  without 
power  to  enter  into  a  new  treaty  that  undermined  in 
any  degree  the  moral  and  legal  structure  of  those  prin- 
ciples and  stipulations.  (See  the  doctrines  laid  down 
by  Fiore,  Olivart  and  Pradier  Fodere.)  Hence  the 
obligation  imposed  on  the  Government  of  Nicaragua  to 
re-establish  and  maintain,  by  all  means  possible,  the 
legal  status  respecting  the  matters  here  in  controversy 
that  existed  with  El  Savador  prior  to  the  5th  of  August, 
1914,  on  which  date  that  memorable  treaty  was  concluded. 

CHAPTER  VII. 
Concerning  Prayers  III  and  IV  of  the  Original  Complaint. 

Whereas:  The  Court  is  without  competence  to  de- 
clare the  Bryan-Chamorro  treaty  to  be  null  and  void, 
as  in  effect,  the  High  Party  Complainant  requests  it  to 
do  when  it  prays  that  the  Government  of  Nicaragua 
be  enjoined  "to  abstain  from  fulfilling  the  said  Bryan- 
Chamorro  treaty."  On  this  point  the  Court  refrains 
from  pronouncing  decision,  because,  as  it  has  already 
declared,  its  jurisdictional  power  extends  only  to  estab- 
lishing the  legal  relations  among  the  High  Parties  Litigant 
and  to  issuing  orders  affecting  them,  and  them  exclusively, 
as  sovereign  entities  subject  to  its  judicial  power.  To 
declare  absolutely  the  nullity  of  the  Bryan-Chamorro 


82 

treaty,  or  to  grant  the  lesser  prayer  for  the  injunction 
of  abstention,  would  be  equivalent  to  adjudging  and  decid- 
ing respecting  the  rights  of  the  other  party  signatary 
to  the  treaty,  without  having  heard  that  other  party 
and  without  its  having  submitted  to  the  jurisdiction 
of  the  Court.  The  Court,  therefore,  in  this  regard, 
adheres  to  the  doctrine  laid  down  in  the  former  decision— 
of  September,  3  1916,  in  the  case  of  Costa  Rica  vs. 
Nicaragua  (Reports  of  the  Central  American  Court  of 
Justice,  Volume  V,  Nos.  14  to  1 6). 

Nor  does  the  Court  grant  herein  any  other  form  of 
relief,  as  prayed  by  the  High  Party  Complainant  in  the 
fourth  prayer  of  its  original  complaint,  because  such 
relief  has  not  been  prayed  for  in  concrete  form,  and  was 
not  made  the  subject  of  argument  in  the  case  during  the 
trial. 

WHEREFORE: 

The  Central  American  Court  of  Justice,  in  the  name 
of  the  Republics  of  Central  America,  and  in  the  exercise 
of  the  jurisdiction  conferred  upon  it  by  the  Convention 
of  1907,  concluded  at  Washington,  to  which  it  owes  its 
existence;  also  in  conformity  with  the  provisions  of 
Articles  I,  XIII,  XXI,  XXII,  XXIV  and  XXV  of 
said  Convention,  and  with  the  provisions  of  Articles 
6,  38,  43,  56,  76  and  81  of  the  Ordinance  of  Procedure 
of  this  Court;  and,  furthermore,  in  accordance  with  the 
conclusions  voted  at  the  session  of  the  2nd  instance, 
hereby,  and  by  a  majority  vote — which  is  made  necessary 
because  of  the  dissent  of  the  Judge  for  Nicaragua,  whose 
vote  was,  therefore,  recorded  separately — renders  the 
following — 

DECISION: 

First.  That  the  Court  is  competent  to  take  cognizance 
of,  and  decide  the  present  action  brought  by  the  Govern- 
ment of  the  Republic  of  El  Salvador  against  the  Govern- 
ment of  the  Republic  of  Nicaragua; 


83 

Second.  That  the  exceptions  interposed  by  the  High 
Party  Defendant  be,  and  they  are  hereby,  denied; 
^Third.  That,  by  the  concession  of  a  naval  base  in 
the  Gulf  of  Fonseca,  the  Bryan-Chamorro  treaty  of  August 
fifth,  nineteen  hundred  and  fourteen,  menaces  the  national 
security  of  El  Salvador  and  violates  her  rights  of  co-owner- 
ship in  the  said  Gulf,  in  the  manner  and  within  the 
limitations,  set  forth  in  the  Act  Recording  the  Vote  of 
of  the  Court  and  in  Chapter  II  of  the  Second  Part  of 
this  Opinion; 

Fourth.  That  the  said  treaty  violates  Articles  II  and 
IX  of  the  Treaty  of  Peace  and  Amity,  concluded  by  the 
Central  American  States  at  Washington  on  the  twentieth 
of  December,  nineteen  hundred  and  seven; 

Fifth.  That  the  Government  of  Nicaragua  is  under 
the  obligation — availing  itself  of  all  possible  means  provided 
by  international  law — to  re-establish  and  maintain  the 
legal  status  that  existed  prior  to  the  Bryan-Chamorro 
treaty  between  the  Litigant  Republics  insofar  as  relates 
to  the  matters  considered  in  this  section ; 

Sixth.  That  the  Court  refrains  from  rendering  any 
decision  in  response  to  the  third  prayer  of  the  original 
complaint;  and 

Seventh.  That,  respecting  the  fourth  prayer  of  the 
original  complaint,  the  Court  also  refrains  from  rendering 
decision. 

Let  the  foregoing  be  communicated  to  the  High  Parties 
Litigant  and  to  the  other  Governments  of  Central  America. 

ANGEL  M.  BOCANEGRA. 
DANIEL  GUTIERREZ  N.  (NAVAS). 
M.  CASTRO  R.  (RAMIREZ). 
NICOLAS  OREAMUNO. 
SATURNINO  MEDAL. 
MANUEL  EcnEVERRfA,  Secretary. 


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29    1933 


JUN 


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JUL  12  1939 


V 
SEP     5     1943 


4913 


1962 


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UNIVERSITY  OF  CALIFORNIA  LIBRARY 


